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Co-operatives Act 1996 - SCHEDULE 3
REGISTRATION ETC. OF CHARGES
1. Interpretation
In this Part- co-operative includes a foreign co-operative registered under
Part 14; document of title means a document-
(a) used in the ordinary course of business as proof of possession or
control, or of the right to possession or control, of property other
than land; or
(b) authorising or purporting to authorise, whether by endorsement or
delivery, the possessor of the document to transfer or receive
property other than land- and includes-
(c) a bill of lading; and
(d) a warehousekeeper's certificate; and
(e) a wharfinger's certificate; and
(f) a warrant or order for the delivery of goods; and
(g) a document that is, or evidences title to, a marketable security;
marketable security has the same meaning as in the Corporations Act;
present liability, in relation to a charge, means a liability that has arisen,
being a liability the extent or amount of which is fixed or capable of being
ascertained, whether or not the liability is immediately due to be met;
property, in relation to a co-operative, means property within Victoria held
by the co-operative, whether or not as trustee; prospective liability, in
relation to a charge, means any liability that may arise in the future, or any
other liability, but does not include a present liability; Register means the
Register of Co-operative Charges referred to in clause 18; registrable charge
means a charge in relation to which, by virtue of clause 4, the provisions of
this Schedule mentioned in clause 4(1) apply.
2. Application to charges referred to in clause 17
(1) A charge referred to in clause 17 is, until the charge is registered, to
be treated for the purposes of this Schedule as if it were not a registrable
charge but, when the charge is so registered, it has the priority accorded to
a registered charge as from the time of registration.
(2) The registration of a charge referred to in clause 17 does not prejudice
any priority that would have been accorded to the charge under any other law
(whether or not a law of a place in Australia) if the charge had not been
registered.
3. Lodgment of documents
For the purposes of this Schedule, a notice or other document is taken to be
lodged when it is received at the office of the Registrar by an officer
authorised to receive it.
Division 1-Charges
4. To which charges does Schedule apply?
(1) Subject to this Division, the provisions of this Schedule relating to the
giving of notice in relation to, the registration of, and the priorities of,
charges-
(a) apply in relation to the charges referred to in subclause (2) (whether
legal or equitable) on property of a co-operative; and
(b) do not apply in relation to any other charges.
(2) Subclause (1) applies to the following charges-
(a) a floating charge on the whole or a part of the property, business or
undertaking of the co-operative;
(b) a charge on uncalled share capital or uncalled share premiums;
(c) a charge on a call, whether in respect of share capital or share
premiums, made but not paid;
(d) a charge on a personal chattel, including a personal chattel that is
unascertained or is to be acquired in the future, but not including a
ship registered in an official register kept under a law of a place in
Australia relating to title to ships;
(e) a charge on goodwill, on a patent or licence under a patent, on a
trade mark or service mark or a licence to use a trade mark or service
mark, on a copyright or a licence under a copyright or on a registered
design or a licence to use a registered design;
(f) a charge on a book debt;
(g) a charge on a marketable security, not being-
(i) a charge created in whole or in part by the deposit of a document of
title to the marketable security; or
(ii) a mortgage under which the marketable security is registered in the
name of the chargee or a person nominated by the chargee;
(h) a lien or charge on a crop, a lien or charge on wool or a stock
mortgage;
(i) a charge on a negotiable instrument other than a marketable
security.
5. Excluded charges
The provisions of this Schedule mentioned in clause 4(1) do not apply in
relation to-
(a) a charge, or a lien over property, arising by operation of law; or
(b) a pledge of a personal chattel or of a marketable security; or
(c) a charge created in relation to a negotiable instrument or a document
of title to goods, being a charge by way of pledge, deposit, letter of
hypothecation or trust receipt; or
(d) a transfer of goods in the ordinary course of the practice of any
profession or the carrying on of any trade or business; or
(e) a dealing, in the ordinary course of the practice of any profession or
the carrying on of any trade or business, in respect of goods outside
Australia.
6. Personal chattels
The reference in clause 4(2)(d) to a charge on a personal chattel is a
reference to a charge on any article capable of complete transfer by delivery,
whether at the time of the creation of the charge or at some later time, and
includes a reference to a charge on a fixture or a growing crop that is
charged separately from the land to which it is affixed or on which it is
growing, but does not include a reference to a charge on-
(a) a document evidencing title to land; or
(b) a chattel interest in land; or
(c) a marketable security; or
(d) a document evidencing a thing in action; or
(e) stock or produce on a farm or land that by virtue of a covenant or
agreement ought not to be removed from the farm or land where the
stock or produce is at the time of the creation of the charge.
7. Book debts
The reference in clause 4(2)(f) to a charge on a book debt-
(a) is a reference to a charge on a debt due or to become due to the
co-operative at some future time on account of or in connection with a
profession, trade or business carried on by the co-operative, whether
entered in a book or not; and
(b) includes a reference to a charge on a future debt of the same nature
although not incurred or owing at the time of the creation of the
charge-
but does not include a reference to a charge on a marketable security, on a
negotiable instrument or on a debt owing in respect of a mortgage, charge or
lease of land.
8. Crops or stock
The reference in clause 4(2)(h) to a lien or charge on a crop, a lien or
charge on wool or a stock mortgage includes a reference to a security (however
described) that is registrable under a prescribed law of a State or Territory.
9. Deposit of documents of title
For the purposes of this Division, a co-operative is to be considered to have
deposited a document of title to property with another person (in this clause
referred to as the chargee) in a case where the document of title is not in
the possession of the co-operative if-
(a) the person who holds the document of title acknowledges in writing
that the person holds the document of title on behalf of the chargee;
or
(b) a government, an authority or a body corporate that proposes to issue
a document of title in relation to the property agrees, in writing, to
deliver the document of title, when issued, to the chargee.
10. Charges on land or fixtures on land
(1) The provisions of this Schedule mentioned in clause 4(1) do not apply in
relation to a charge on land.
(2) The provisions of this Schedule mentioned in clause 4(1) do not apply in
relation to a charge on fixtures given by a charge on the land to which they
are affixed.
11. What if other property is also charged?
For the purposes of this Division, a charge is to be considered to be a charge
on property of a kind to which a particular paragraph of clause 4(2) applies
even though the instrument of charge also charges other property of the
co-operative including other property that is of a kind to which none of the
paragraphs of that subclause applies.
12. Effect of failure to lodge or give notice or document
A charge on property of a co-operative is not invalid merely because of the
failure to lodge with the Registrar, or give to the co-operative or another
person, a notice or other document that is required by this Part to be so
lodged or given.
Division 2-Notice of charge
13. Lodgment of notice of charge and copy of instrument
(1) If a co-operative creates a charge, the co-operative must ensure that
there is lodged with the Registrar within 45 days after the creation of the
charge, a notice in the form approved by the Registrar setting out the
following particulars-
(a) the name of the co-operative and the date of the creation of the
charge;
(b) whether the charge is a fixed charge, a floating charge or both a
fixed and floating charge;
(c) if the charge is a floating charge, whether there is any provision in
the resolution or instrument creating or evidencing the charge that
prohibits or restricts the creation of subsequent charges;
(d) a short description of the liability (whether present or prospective)
secured by the charge;
(e) a short description of the property charged;
(f) whether the charge is created or evidenced by a resolution, by an
instrument or by a deposit or other conduct;
(g) if the charge is constituted by the issue of a debenture or
debentures, the name of the trustee (if any) for debenture holders;
(h) if the charge is not constituted by the issue of a debenture or
debentures or there is no trustee for debenture holders, the name of
the chargee;
(i) any other information that is prescribed.
(2) If, pursuant to a resolution or resolutions passed by the co-operative,
the co-operative issues a series of debentures constituting a charge to the
benefit of which all the holders of debentures in the series are entitled in
equal priority, and the charge is evidenced only by the resolution or
resolutions and the debentures, the notice under subclause (1) must be
accompanied by-
(a) a copy of the resolution or of each of the resolutions verified by a
statement in writing to be a true copy; and
(b) a copy of the first debenture issued in the series and a statement in
writing verifying the execution of that first debenture.
(3) If, in a case to which subclause (2) does not apply, the charge created by
the co-operative was created or evidenced by an instrument or instruments, the
notice under subclause (1) must be accompanied by-
(a) the instrument or each of the instruments; or
(b) a copy of the instrument or of each of the instruments verified by a
statement in writing to be a true copy, and a statement in writing
verifying the execution of the instrument or of each of the
instruments.
14. Series of debentures
In a case to which clause 13(2) applies-
(a) the charge is, for the purposes of clause 13, to be considered to be
created when the first debenture in the series of debentures is
issued; and
(b) if, after the issue of the first debenture in the series, the
co-operative passes a further resolution authorising the issue of
debentures in the series, the co-operative must ensure that a copy of
that resolution, verified by a statement in writing to be a true copy
of that resolution, is lodged within 45 days after the passing of that
resolution.
15. Operation of priority provisions in respect of issue of debentures
If a notice with respect to an instrument creating a charge has been lodged
under clause 13(1), being a charge in respect of an issue of several
debentures the holders of which are entitled under the instrument in equal
priority to the benefit of the charge, clauses 46 to 49 have effect as if any
charges constituted by those debentures were registered at the time when the
charge to which the notice relates was registered.
16. Discounts
(1) If a payment or discount has been made or allowed, either directly or
indirectly, by a co-operative to a person in consideration of the person's
subscribing or agreeing to subscribe, whether absolutely or conditionally, for
debentures, or procuring or agreeing to procure subscriptions, whether
absolute or conditional, for debentures, the notice required to be lodged
under clause 13(1) must include particulars as to the amount or rate per cent
of the payment or discount.
(2) If a co-operative issues debentures as security for a debt of the
co-operative, the co-operative is not thereby to be regarded, for the purposes
of subclause (1), as having allowed a discount in respect of the debentures.
17. Acquisition of property subject to charge
(1) If a co-operative acquires property that is subject to a charge, being a
charge that would have been registrable when it was created if it had been
created by a co-operative, the co-operative must, within 45 days after the
acquisition of the property-
(a) ensure that there is lodged with the Registrar a notice in the form
approved by the Registrar in relation to the charge, setting out-
(i) the name of the co-operative; and
(ii) the date on which the property was so acquired; and
(iii) any other particulars required by clause 13(1); and
(b) give to the chargee notice that it has acquired the property and the
date on which it was so acquired.
(2) If the charge referred to in subclause (1) was created or evidenced as
mentioned in clause 13(2), the notice under subclause (1)(a) must be
accompanied by-
(a) a copy of the resolution or of each of the resolutions referred to in
clause 13(2) verified by a statement in writing to be a true copy; and
(b) a copy of the first debenture issued in the series referred to in
clause 13(2) verified by a statement in writing to be a true copy.
(3) If the charge referred to in subclause (1) was created or evidenced by an
instrument or instruments (otherwise than as mentioned in clause 13(2)), the
notice under subclause (1)(a) must be accompanied by-
(a) the instrument or each of the instruments; or
(b) a copy of the instrument or of each of the instruments verified by a
statement in writing to be a true copy.
Division 3-Registration
18. Register of Co-operative Charges
The Registrar must keep a register to be known as the Register of Co-operative
Charges.
19. Registration of documents relating to charge
(1) If a notice is lodged with the Registrar in accordance with Division 2,
the Registrar must as soon as practicable cause to be entered in the Register
the time and date when the notice was lodged and the following particulars in
relation to the charge-
(a) if the charge is a charge created by the co-operative, the date of its
creation;
(b) if the charge was a charge existing on property acquired by the
co-operative, the date on which the property was so acquired;
(c) a short description of the liability (whether present or prospective)
secured by the charge;
(d) a short description of the property charged;
(e) the name of the trustee for debenture holders or, if there is no such
trustee, the name of the chargee.
(2) Subclause (1) only applies if the notice contains the required particulars
and is accompanied by the required documents.
(3) Subclause (1) applies whether the notice is lodged during or after the
period within which the notice is required to be lodged.
(4) Subject to this Division, if particulars in respect of a charge are
entered in the Register in accordance with subclause (1), the charge is to be
considered to be registered, and to have been registered from and including
the time and date entered in the Register under that subclause.
(5) The Registrar may enter in the Register in relation to a charge, in
addition to the particulars expressly required by this Division to be entered,
such other particulars as the Registrar thinks fit.
20. Provisional registration if stamp duty not paid
(1) If-
(a) a notice in respect of a charge on property of a co-operative is
lodged under Division 2; and
(b) the notice is not accompanied by a certificate to the effect that all
documents accompanying the notice have been duly stamped as required
by any applicable law relating to stamp duty-
the Registrar must cause to be entered in the Register the time and date when
the notice was lodged and the particulars referred to in clause 19(1)(a) to
(e), but must cause the word "provisional" to be entered in the Register next
to the entry specifying that time and date.
(2) Subclause (1) applies whether the notice was lodged during or after the
period within which the notice was required to be lodged.
(3) The Registrar must delete the word "provisional" entered in the Register
under subclause (1) from an entry relating to a charge if a certificate to the
effect set out in subclause (1)(b) has been produced to the Registrar-
(a) within a period of 28 days; or
(b) within such longer period as is prescribed after the notice was
lodged; or
(c) within such further period as the Registrar, if the Registrar
considers it to be appropriate in a particular case, allows.
(4) The Registrar must delete from the Register all the particulars that were
entered in relation to a charge if-
(a) the word "provisional" is entered in the Register under subclause (1)
in relation to an entry relating to the charge; and
(b) a certificate to the effect set out in subclause (1)(b) is not
produced within the period, or the further period, referred to in
subclause (3).
21. Provisional registration if required particulars not supplied
(1) If a defective notice in respect of a charge on property is lodged with
the Registrar under clause 19, the Registrar must cause to be entered in the
Register-
(a) the time and date when the document was lodged; and
(b) such of the particulars referred to in clause 19(1)(a) to (e) as are
ascertainable; and
(c) the word "provisional" next to the entry specifying the time and date.
(2) If a defective notice in respect of a charge is lodged under clause 19,
the Registrar must, by written notice to the person who lodged the defective
notice, direct the person to ensure that there is lodged, on or before the day
specified in the notice, a notice in relation to the charge that complies with
the requirements of Division 2.
(3) Subclauses (1) and (2) apply whether the defective notice was lodged
during or after the period within which the notice was required to be lodged.
(4) The giving by the Registrar of a direction to the person under subclause
(2) does not affect any liability that the co-operative may have incurred or
may incur by reason of a contravention of Division 2.
(5) If the Registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is complied with on or before the day
specified in the notice containing the direction, the Registrar must-
(a) delete from the Register the word "provisional'' that was inserted
pursuant to subclause (1); and
(b) cause to be entered in the Register in relation to the charge any
particulars referred to in clause 19(1) that have not previously been
entered.
(6) If the Registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is not complied with on or before the
day specified in the notice, the Registrar must delete from the Register all
the particulars that were entered in relation to the charge.
(7) If the Registrar gives a direction to a person under subclause (2) in
relation to a charge and the direction is complied with after the day
specified in the notice, the Registrar must cause to be entered in the
Register in relation to the charge-
(a) the time at which and day on which the direction was complied with;
and
(b) the particulars referred to in clause 19 (1)(a) to (e).
(8) In this clause defective notice means a document that-
(a) purports to be a notice in respect of a charge on property of a
co-operative for the purposes of Division 2; and
(b) contains the name of the co-operative concerned and the particulars
referred to in clause 13(1)(g) or (h), as the case requires-
but does not contain some or all of the other particulars that are required to
be included in the notice or is otherwise defective.
22. Effect of provisional registration
(1) Subject to this clause, if the word "provisional" is entered in the
Register next to an entry specifying a time and day in relation to a charge,
the charge is to be considered not to have been registered.
(2) If the word "provisional" is deleted from the Register pursuant to clause
20 or 21(5), the charge is to be considered to be registered and to have been
registered from and including the time and day specified in the Register
pursuant to clause 20 or 21(1), as the case may be.
(3) If the particulars in relation to the charge are deleted from the Register
pursuant to clause 21(6) and those particulars and a time and day are
subsequently entered in the Register in relation to the charge pursuant to
clause 21(7) the charge is to be considered to be registered from and
including that last-mentioned time and day.
23. What if 2 or more charges relate to the same property?
(1) If, pursuant to clause 17, a co-operative lodges notices relating to 2 or
more charges on the same property acquired by the co-operative (being charges
that are not already registered under this Division), the time and day that is
to be entered in the Register in relation to each of those charges are the
time and day when the first notice was lodged.
(2) If, in accordance with subclause (1), the time and day that are entered in
the Register are the same in relation to 2 or more charges on property
acquired by a co-operative, those charges are to have, as between themselves,
the respective priorities that they would have had if they had not been
registered under this Division.
24. Registration of assignment or variation of charge
(1) If a notice is lodged under clause 36, the Registrar must as soon as
practicable cause to be entered in the Register the time and day when the
notice was so lodged and the particulars set out in the notice.
(2) Subclause (1) applies whether the notice was lodged during or after the
period within which the notice was required to be lodged.
25. Standard time for the purposes of this Division
(1) The Registrar may, by notice published in the Government Gazette, declare
a specified standard time to be the standard time for the purposes of this
Division.
(2) If a notice is in force under subclause (1), a reference in this Division
to entering the time when a particular event happened is a reference to
entering that time as expressed in terms of the standard time specified in the
notice.
Division 4-Certain charges void against liquidator or administrator
26. Definitions
In this Division- critical day, in relation to a co-operative, means-
(a) if the co-operative is being wound up, the day when the winding up
began; or
(b) if the co-operative is under administration, the relevant day in
relation to the administration; or
(c) if the co-operative has executed a deed of arrangement, the relevant
day in relation to the administration that ended when the deed was
executed. relevant day, in relation to the administration of a
co-operative, means-
(a) if, when the administration began, a winding up of the co-operative
was in progress, the day on which the winding up is taken because of
Division 1A of Part 5.6 of the Corporations Act (as applying under
this Act) to have begun; or
(b) otherwise, the day on which the administration began.
27. Certain charges void against liquidator or administrator
(1) Subject to this Division, if-
(a) an order is made, or a resolution is passed, for the winding up of a
co-operative; or
(b) the Registrar gives a certificate under section 315 for the winding up
of the co-operative; or
(c) an administrator of a co-operative is appointed under Part 5.3A of the
Corporations Act as applying under this Act; or
(d) a co-operative executes a deed of arrangement-
a registrable charge on property of the co-operative is void as a security on
that property as against the liquidator, the administrator of the
co-operative, or the deed's administrator, as the case may be.
(2) A charge is not void under subclause (1) if-
(a) a notice in respect of the charge was lodged under clause 13 or 17, as
the case requires-
(i) within the relevant period; or
(ii) at least 6 months before the critical day; or
(b) the period within which a notice in respect of the charge (other than
a notice under clause 36) is required to be lodged, being the period
specified in the relevant clause or that period as extended by the
Supreme Court under clause 29, has not ended at the start of the
critical day and the notice is lodged before the end of that period;
or
(c) in relation to a charge to which clause 17 applies, the period of 45
days after the chargee becomes aware that the property charged has
been acquired by a co-operative has not ended at the start of the
critical day and the notice is lodged before the end of that period.
(3) The reference in subclause (2)(a) to the relevant period shall be
construed as a reference to-
(a) in relation to a charge to which clause 13 applies, the period of 45
days specified in that clause, or that period as extended by the
Supreme Court under clause 29; or
(b) in relation to a charge to which clause 17 applies, the period of 45
days after the chargee becomes aware that the property has been
acquired by a co-operative.
28. Certain varied charges void against liquidator or administrator
(1) Subject to this Division, if, after there has been a variation in the
terms of a registrable charge on property of a co-operative having the effect
of increasing the amount of the debt or increasing the liabilities (whether
present or prospective) secured by the charge-
(a) an order is made, or a resolution is passed, for the winding up of the
co-operative; or
(b) an administrator of a co-operative is appointed under Part 5.3A of the
Corporations Act (as applying under this Act); or
(c) a co-operative executes a deed of arrangement-
the registrable charge is void as a security on that property to the extent
that it secures the amount of the increase in that debt or liability.
(2) A charge is not void under subclause (1) if-
(a) a notice in respect of the variation was lodged under clause 36-
(i) within the period of 45 days specified in clause 36(2) or that period
as extended by the Supreme Court under clause 29; or
(ii) not later than 6 months before the critical day; or
(b) the period of 45 days specified in clause 36(2), or that period as
extended by the Supreme Court under clause 29, has not ended at the
start of the critical day and the notice is lodged before the end of
that period.
29. Supreme Court may extend required period
The Supreme Court, if it is satisfied that the failure to lodge a notice in
respect of a charge, or in respect of a variation in the terms of a charge, as
required by any provision of this Schedule-
(a) was accidental or due to inadvertence or some other sufficient cause;
or
(b) is not of a nature to prejudice the position of creditors or
shareholders-
or that on other grounds it is just and equitable to grant relief, may, on the
application of the co-operative or any person interested and on such terms and
conditions as seem to the Court just and expedient, by order, extend the
period for such further period as is specified in the order.
30. Certain later charges void
(1) Subject to subclause (3), if-
(a) a registrable charge (in this subclause referred to as the later
charge) is created before the end of 45 days after the creation of an
unregistered registrable charge (in this subclause referred to as the
earlier charge); and
(b) the later charge relates to all or any of the property to which the
earlier charge related; and
(c) the later charge is given as a security for the same liability as is
secured by the earlier charge or any part of that liability-
the later charge, to the extent to which it is a security for the same
liability or part thereof, and so far as it relates to the property comprised
in the earlier charge, is void as a security on that property as against a
liquidator or administrator of the co-operative, or an administrator of a deed
of arrangement executed by the co-operative.
(2) Subclause (1) applies even if a notice in respect of the later charge was
lodged under clause 13 within the period mentioned in clause 27(2)(a).
(3) Subclause (1) does not apply if it is proved to the satisfaction of the
Supreme Court that the later charge was given in good faith for the purpose of
correcting some material error in the earlier charge or under other proper
circumstances and not for the purposes of avoiding or evading the provisions
of this Division.
31. Effect of provisions on purchaser in good faith
(1) Nothing in clause 27(1) or (2) or 28 operates to affect the title of a
person to property purchased for value from a chargee or from a receiver
appointed by a chargee in the exercise of powers conferred by the charge or
implied by law if that person purchased the property in good faith and without
notice of-
(a) the filing of an application for an order for the winding up of the
co-operative; or
(b) the passing of the necessary resolution for the voluntary winding up
of the co-operative; or
(c) an administrator of the co-operative being appointed under Part 5.3A
of the Corporations Act (as applying under this Act); or
(d) the co-operative executing a deed of arrangement.
(2) The onus of proving that a person purchased property in good faith and
without notice of any of the matters referred to in subclause (1)(a), (b), (c)
and (d) is on the person asserting that the property was so purchased.
Division 5-Certain charges in favour of persons void
32. Definitions
In this Division- chargee, in relation to a charge, means-
(a) in any case, the holder, or all or any of the holders, of the charge;
or
(b) in the case of a charge that is an agreement to give or execute a
charge in favour of a person or persons, whether on demand or
otherwise, that person, or all or any of those persons; officer, in
relation to a co-operative, includes, in the case of a foreign
co-operative, a local agent of the foreign co-operative; receiver
includes a receiver and manager;
relevant person, in relation to a charge created by a co-operative, means-
(a) a person who is at the time when the charge is created, or who has
been at any time during the period of 6 months ending at that time, an
officer of the co-operative; or
(b) a person associated, in relation to the creation of the charge, with a
person of a kind referred to in paragraph (a).
33. Charges in favour of certain persons void in certain cases
(1) If-
(a) a co-operative creates a charge on property of the co-operative in
favour of a person who is, or in favour of persons at least one of
whom is, a relevant person in relation to the charge; and
(b) within 6 months after the creation of the charge, the chargee purports
to take a step in the enforcement of the charge without the Supreme
Court having, under clause 34, given leave for the charge to be
enforced-
the charge, and any powers purported to be conferred by an instrument creating
or evidencing the charge, are, and are to be considered always to have been,
void.
(2) Without limiting the generality of subclause (1), a person who-
(a) appoints a receiver of property of a co-operative under powers
conferred by an instrument creating or evidencing a charge created by
the co-operative; or
(b) whether directly or by an agent, enters into possession or assumes
control of property of a co-operative for the purposes of enforcing a
charge created by the co-operative-
is to be taken, for the purposes of subclause (1), to take a step in the
enforcement of the charge.
34. Supreme Court may give leave for enforcement of charge
On application by the chargee under a charge, the Supreme Court may give leave
for the charge to be enforced, if the Court is satisfied that-
(a) immediately after the creation of the charge, the co-operative that
created the charge was solvent; and
(b) in all the circumstances of the case, it is just and equitable for the
Court to do so.
35. Certain transactions excluded
(1) Nothing in clause 33 affects a debt, liability or obligation of a
co-operative that would, if that clause had not been enacted, have been
secured by a charge created by the co-operative.
(2) Nothing in clause 33 operates to affect the title of a person to property
(other than the charge concerned or an interest in the charge concerned)
purchased for value from a chargee under a charge, from an agent of a chargee
under a charge, or from a receiver appointed by a chargee under a charge in
the exercise of powers conferred by the charge or implied by law, if that
person purchased the property in good faith and without notice that the charge
was created in favour of a person who is, or in favour of persons at least one
of whom is, as the case may be, a relevant person in relation to the charge.
(3) The onus of proving that a person purchased property in good faith and
without notice that a charge was created as mentioned in subclause (2) is on
the person asserting that the property was so purchased.
Division 6-Assignment, variation or satisfaction of charges
36. Assignment and variation of charges
(1) If, after a registrable charge on property of a co-operative has been
created, a person other than the original chargee becomes the holder of the
charge, the person who becomes the holder of the charge must, within 45 days
after he, she or it becomes the holder of the charge-
(a) lodge a notice with the Registrar stating that he, she or it has
become the holder of the charge; and
(b) give the co-operative a copy of the notice.
(2) If, after a registrable charge on property of a co-operative has been
created, there is a variation in the terms of the charge having the effect of-
(a) increasing the amount of the debt or increasing the liabilities
(whether present or prospective) secured by the charge; or
(b) prohibiting or restricting the creation of subsequent charges on the
property- the co-operative must, within 45 days after the variation
occurs, ensure that there is lodged with the Registrar a notice
setting out particulars of the variation and accompanied by the
instrument (if any) effecting the variation or a certified copy of
that instrument.
(3) If a charge created by a co-operative secures a debt of an unspecified
amount or secures a debt of a specified amount and further advances, a payment
or advance made by the chargee to the co-operative in accordance with the
terms of the charge is not to be taken, for the purposes of subclause (2), to
be a variation in the terms of the charge having the effect of increasing the
amount of the charge or the liabilities (whether present or prospective)
secured by the charge.
(4) A reference in this clause to the chargee in relation to a charge is, if
the charge is constituted by a debenture or debentures and there is a trustee
for debenture holders, to be construed as a reference to the trustee for
debenture holders.
(5) Nothing in clause 13 requires the lodgment of a notice under that clause
in relation to a charge merely because of the fact that the terms of the
charge are varied only in a manner mentioned in this clause.
37. Satisfaction of, and release of property from, charges
(1) If, with respect to a charge registered under this Part-
(a) the debt or other liability the payment or discharge of which was
secured by the charge has been paid or discharged in whole or in part;
or
(b) the property charged or part of that property is released from the
charge-
the person who was the holder of the charge at the time when the debt or other
liability was so paid or discharged or the property or part of the property
was released must, within 14 days after receipt of a request in writing made
by the co-operative on whose property the charge exists, give to the
co-operative a memorandum in the form approved by the Registrar acknowledging
that the debt or other liability has been paid or discharged in whole or in
part or that the property or that part of it is no longer subject to the
charge, as the case may be.
(2) The co-operative may lodge the memorandum with the Registrar and, on the
memorandum being lodged, the Registrar must enter in the Register particulars
of the matters stated in the memorandum.
(3) The reference in subclause (1) to the person who was the holder of a
charge at the time when the debt or other liability was so paid or discharged
or the property or part of the property was released is, if the charge was
constituted by a debenture or debentures and there was a trustee for debenture
holders, to be construed as a reference to the person who was, at that time,
the trustee of debenture holders.
Division 7-General
38. Lodgment of notices
(1) If a notice in respect of a charge on property of a co-operative is
required to be lodged under clause 13, 17 or 36(2), the notice may be lodged
by the co-operative or by any interested person.
(2) If a document required by this Part other than clause 36(1) to be lodged
with the Registrar is lodged by a person other than the co-operative
concerned, that person-
(a) must, within 7 days after the lodgment of the document, give to the
co-operative a copy of the document; and
(b) is entitled to recover from the co-operative the amount of any fees
properly paid by the person on lodgment of the document.
39. Lodgment offences
(1) If clause 13, 17 or 36(2) is contravened in relation to a registrable
charge on property of a co-operative, the co-operative and any officer of the
co-operative who is knowingly concerned in or a party to the contravention is
guilty of an offence and liable to a penalty not exceeding 10 penalty units.
(2) If a person who becomes the holder of a registrable charge fails to comply
with clause 36(1), the person and, if the person is a body corporate, any
officer of the body corporate who is in default, each contravene this
subclause.
40. Co-operative to keep documents relating to charges
A co-operative must, at the place where the register referred to in clause 41
is kept, keep a copy of-
(a) every document relating to a charge on property of the co-operative
that is lodged with the Registrar under this Part; and
(b) every document given to the co-operative under this Part.
Penalty: 10 penalty units.
41. Co-operative to keep register
(1) A co-operative must keep a register.
(2) On the creation of a charge (whether registrable or not) on property of
the co-operative, or on the acquisition of property subject to a charge
(whether registrable or not), the co-operative must as soon as practicable
enter in the register particulars of the charge, giving in each case-
(a) if the charge is a charge created by the co-operative, the date of its
creation or, if the charge was a charge existing on property acquired
by the co-operative, the date on which the property was so acquired;
and
(b) a short description of the liability (whether present or prospective)
secured by the charge; and
(c) a short description of the property charged; and
(d) the name of the trustee for debenture holders or, if there is no such
trustee, the name of the chargee; and
(e) the name of the person whom the co-operative believes to be the holder
of the charge.
(3) A register kept by a co-operative pursuant to subclause (1) must be open
for inspection-
(a) by any creditor or member of the co-operative, without charge; and
(b) by any other person, on payment for each inspection of such amount,
not exceeding the prescribed amount, as the co-operative requires or,
where the co-operative does not require the payment of an amount,
without charge.
(4) A person may request a co-operative to furnish the person with a copy of
the register or any part of the register.
(5) If a person makes a request under subsection (4), the co-operative must
send the copy to that person-
(a) if the co-operative requires payment of an amount not exceeding the
prescribed amount, within 21 days after payment of the amount is
received by the co-operative or within such longer period as the
Registrar approves; or
(b) in a case to which paragraph (a) does not apply, within 21 days after
the request is made or within such longer period as the Registrar
approves.
(6) If default is made in complying with any provision of this clause, the
co-operative is guilty of an offence and liable to a penalty not exceeding 10
penalty units.
42. Certificates
(1) If particulars of a charge are entered in the Register in accordance with
this Part, the Registrar must, on request by any person, issue to that person
a certificate-
(a) setting out those particulars; and
(b) stating the time and day when a notice in respect of the charge
containing those particulars was lodged with the Registrar; and
(c) if the word "provisional" appears in the Register next to the
reference to that time and day, stating that fact.
(2) A certificate issued under subclause (1) is evidence of the matters stated
in the certificate.
(3) If particulars of a charge are entered in the Register in accordance with
this Part, and the word "provisional" does not appear in the Register next to
the reference to the time and day when a notice in respect of the charge was
lodged, the Registrar must, on request by any person, issue to that person a
certificate stating that particulars of the charge are entered in the Register
in accordance with this Part.
(4) A certificate issued under subclause (3) is conclusive evidence that the
requirements of this Part as to registration (other than the requirements
relating to the period after the creation of the charge within which notice in
respect of the charge is required to be lodged) have been complied with.
43. Power of Supreme Court to rectify Register
If the Supreme Court is satisfied-
(a) that a particular with respect to a registrable charge on property of
a co-operative has been omitted from, or mis-stated in, the Register
or a memorandum referred to in clause 37; and
(b) that the omission or mis-statement-
(i) was accidental or due to inadvertence or to some other sufficient
cause; or
(ii) is not of a nature to prejudice the position of creditors or
shareholders- or that on other grounds it is just and equitable to
grant relief- the Court may, on the application of the co-operative or
any person interested and on such terms and conditions as seem to the
Court just and expedient, order that the omission or mis-statement be
rectified.
44. Power to exempt from compliance with certain requirements of Part
(1) The Registrar may, by instrument in writing, exempt a person, as specified
in the instrument and subject to the conditions (if any) that are specified in
the instrument, from compliance with such of the requirements of clause 13, 17
or 36 relating to-
(a) the particulars to be contained in a notice under the relevant clause;
or
(b) the documents (other than the notice) to be lodged under the relevant
clause; or
(c) the verification of any document required to be lodged under the
relevant clause-
as are specified in the instrument.
(2) A person who is exempted by the Registrar, subject to a condition, from
compliance with a requirement of clause 13, 17 or 36 must not contravene the
condition.
(3) If a person has contravened a condition to which an exemption under this
clause is subject, the Supreme Court may, on the application of the Registrar,
order the person to comply with the condition.
Division 1-General
45. Definitions
(1) In this Part-
priority time, in relation to a registered charge, means-
(a) except as provided by paragraph (b) or (c), the time and date
appearing in the Register in relation to the charge, being a time and
day entered in the Register pursuant to Division 3 of Part 2; and
(b) if a notice has been lodged under clause 17 in relation to a charge on
property, being a charge that, at the time when the notice was lodged,
was already registered under Part 2, the earlier or earliest time and
day appearing in the Register in relation to the charge, being a time
and day entered in the Register pursuant to clause 17; and
(c) to the extent that the charge has effect as varied by a variation,
notice of which was required to be lodged under clause 36(2), the time
and day entered in the Register in relation to the charge pursuant to
clause 24; prior registered charge, in relation to another registered
charge, means a charge the priority time of which is earlier than the
priority time of the other charge; subsequent registered charge, in
relation to another registered charge, means a charge the priority
time of which is later than the priority time of the other registered
charge; registered charge means a charge that is registered under
Part 2; unregistered charge means a charge that is not registered
under Part 2 but does not include a charge that is not a registrable
charge.
(2) A reference in this Part to a person having notice of a charge includes a
reference to a person having constructive notice of the charge.
(3) If, by virtue of the definition of priority time in subclause (1), a
registered charge has 2 or more priority times each of which relates to a
particular liability secured by the charge, each of those liabilities is, for
the purposes of this Part, to be considered to be secured by a separate
registered charge the priority time of which is the priority time of the
first-mentioned registered charge that relates to the liability concerned.
46. Priorities of charges
(1) Subject to this clause, Division 2 has effect with respect to the
priorities, in relation to each other, of registrable charges on the property
of a co-operative.
(2) The application, in relation to particular registrable charges, of the
order of priorities of charges set out in Division 2, is subject to-
(a) any consent (express or implied) that varies the priorities in
relation to each other of those charges, being a consent given by the
holder of one of those charges, being a charge that would otherwise be
entitled to priority over the other charge; and
(b) any agreement between those chargees that affects the priorities in
relation to each other of the charges in relation to which those
persons are the chargees.
(3) The holder of a registered charge, being a floating charge, on property of
a co-operative is to be considered, for the purposes of subclause (2), to have
consented to that charge being postponed to a subsequent registered charge,
being a fixed charge that is created before the floating charge becomes fixed,
on any of that property unless-
(a) the creation of the subsequent registered charge contravened a
provision of the instrument or resolution creating or evidencing the
floating charge; and
(b) a notice in respect of the floating charge indicating the existence of
the provision referred to in paragraph (a) was lodged with the
Registrar under clause 13, 17 or 36 before the creation of the
subsequent registered charge.
(4) If a charge relates to property of a kind or kinds to which a particular
paragraph or paragraphs of clause 4(1) applies or apply and also relates to
other property, Division 2 applies so as to affect the priority of the charge
only in so far as it relates to the first-mentioned property and does not
affect the priority of the charge in so far as it relates to the other
property.
Division 2-Priority rules
47. General priority rules in relation to registered charges
(1) A registered charge on property of a co-operative has priority over-
(a) a subsequent registered charge on the property, unless the subsequent
registered charge was created before the creation of the prior
registered charge and the chargee in relation to the subsequent
registered charge proves that the chargee in relation to the prior
registered charge had notice of the subsequent registered charge at
the time when the prior registered charge was created; and
(b) an unregistered charge on the property created before the creation of
the registered charge, unless the chargee in relation to the
unregistered charge proves that the chargee in relation to the
registered charge had notice of the unregistered charge at the time
when the registered charge was created; and
(c) an unregistered charge on the property created after the creation of
the registered charge.
(2) A registered charge on property of a co-operative is postponed to-
(a) a subsequent registered charge on the property, if the subsequent
registered charge was created before the creation of the prior
registered charge and the chargee in relation to the subsequent
registered charge proves that the chargee in relation to the prior
registered charge had notice of the subsequent registered charge at
the time when the prior registered charge was created; and
(b) an unregistered charge on the property created before the creation of
the registered charge, where the chargee in relation to the
unregistered charge proves that the chargee in relation to the
registered charge had notice of the unregistered charge at the time
when the registered charge was created.
48. General priority rule in relation to unregistered charges
An unregistered charge on property of a co-operative has priority over-
(a) a registered charge on the property that was created after the
creation of the unregistered charge and does not have priority over
the unregistered charge under clause 47(1); and
(b) another unregistered charge on the property created after the
first-mentioned unregistered charge.
49. Special priority rules
(1) Except as provided by this clause, any priority accorded by this Part to a
charge over another charge does not extend to any liability that, at the
priority time in relation to the first-mentioned charge, is not a present
liability.
(2) If a registered charge on property of a co-operative secures-
(a) a present liability and a prospective liability of an unspecified
amount; or
(b) a prospective liability of an unspecified amount-
any priority accorded by this Part to the charge over another charge of which
the chargee in relation to the first-mentioned charge does not have actual
knowledge extends to the prospective liability, whether the prospective
liability became a present liability before or after the registration of the
first-mentioned charge.
(3) If a registered charge on property of a co-operative secures-
(a) a present liability and a prospective liability up to a specified
maximum amount; or
(b) a prospective liability up to a specified maximum amount-
and the notice lodged under clause 13 or 17 in relation to the charge sets out
the nature of the prospective liability and the amount so specified, then any
priority accorded by this Part to the charge over another charge extends to
any prospective liability secured by the first-mentioned charge to the extent
of the maximum amount so specified.
(4) Subclause (3) applies whether the prospective liability became a present
liability before or after the registration of the first-mentioned charge and
despite the fact that the chargee in relation to the first-mentioned charge
had actual knowledge of the other charge at the time when the prospective
liability became a present liability.
(5) Subclause (6) applies if-
(a) a registered charge on property of a co-operative secures-
(i) a present liability and a prospective liability up to a specified
maximum amount; or
(ii) a prospective liability up to a specified maximum amount- but the
notice lodged under clause 13 or 17 in relation to the charge does not
set out the nature of the prospective liability or the maximum amount
so specified; or
(b) a registered charge on property of a co-operative secures a
prospective liability of an unspecified amount.
(6) In relation to a charge referred to in subclause (5)-
(a) any priority accorded by this Part to the charge over another charge
of which the chargee in relation to the first-mentioned charge has
actual knowledge extends to any prospective liability secured by the
first-mentioned charge that had become a present liability at the time
when the chargee in relation to the first-mentioned charge first
obtained actual knowledge of the other charge;
(b) any priority accorded by this Part to the charge over another charge
of which the chargee in relation to the first-mentioned charge has
actual knowledge extends to any prospective liability secured by the
first-mentioned charge that became a present liability, as the result
of the making of an advance, after the time when the chargee in
relation to the first-mentioned charge first obtained actual knowledge
of the other charge if, at that time, the terms of the first-mentioned
charge required the chargee in relation to that charge to make the
advance after that time.
(7) Subclause (6)(b) extends to the prospective liability whether the advance
was made before or after the registration of the first-mentioned charge and
despite the fact that the chargee in relation to the first-mentioned charge
had actual knowledge of the other charge at the time when the advance was
made.
_______________
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