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Version No. 095

Co-operative Housing Societies Act 1958No. 6226 of 1958

Version incorporating amendments as at15 October 2014

TABLE OF PROVISIONSSection Page

1 Short title and commencement 12 Repeal Schedule 13 Definitions 23A Construction of references to Commission 11

PART I—GENERAL 12

4 Formation and registration of co-operative housing societies 124A Societies excluded from Corporations legislation 125 Objects of society 136 Power of society to raise money on loan 14

PART II—INCORPORATION OF SOCIETIES 15

Division 1—Registration, &c. 15

7 Liability and membership 158 Formation and registration of society 169 As to names of societies 1910 Certificate of incorporation as evidence 20

Division 2—Mergers and transfers of engagements 21

11 Application for merger or transfer of engagements between societies 21

12 Registrar may register merged society 2313 Certificate confirming transfer of engagements between

societies 2414 Registrar may direct a transfer of engagements between

societies 2515 Society to comply with direction 2616 Day on which transfer of engagements takes effect 2717 Effect of merger 2718 Effect of transfer of engagements 2818A References to documents 29

Division 3—Members and Funds 29

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24 Members of societies 2925 Capital and shares 3226 Liability of members 3327 Cancellation of shares 3528 Society's charge on shares 3629 Payment of sum due on unadvanced shares without probate 36

Division 4—Privileges, powers, and duties 37

30 Society to be a body corporate 3731 Exemption from fees 3732 Acquisition of property 3733 Raising loans 3833A Society may act as trustee or agent 4234 As to advances by societies 4235 Contracts by society 4536 As to name and address of society 4637 Service of documents on society 4638 Effect of rules 4639 Registers and accounts 4740 Inspection of registers etc. 4741 Returns 4842 Charges 4943 No voting by proxy 4944 Special resolution 49

Division 5—Quarterly returns and reports 50

44A Quarterly returns by society 5044B Auditor to submit report 51

Division 6—Directions of Registrar 52

44C Intervention by the Registrar 52

Division 7—Supervision levy 54

44CA Industry Supervision Fund 5444D Supervision levy 55

PART III—RULES, MANAGEMENT, &c. 57

Division 1—Rules 57

45 Model rules 5746 Rules of a society 5747 Alteration of rules 60

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Division 2—Management 61

48 Board of directors 6149 Appointment of director by Treasurer in certain cases 6549A Appointment of administrator 6650 Annual meeting 6951 Voting by members 7052 Minutes 7053 Officers 7054 Certain dealings by directors prohibited 7155 Dismissal of director after inquiry in certain cases 7156 Audit 7357 Financial year 75

Division 3—Valuations 75

58 Valuations of property to be made by sworn valuators 75

Division 4—Winding up, &c. 77

59 Winding up voluntarily or by court 7760 Liability of members and past members in winding up 81

PART IV—ADMINISTRATION 83

Division 1—Registry 83

62 Employment of Registrar 8362A Registrar's functions 8362B Delegation by Registrar 8363 Documents to be kept in office of registrar 8464 Payments to be made for giving of information 8465 Power to registrar to require evidence 8466 Inspection of books 8467 Special general meeting or inquiry 8568 Inquiry by registrar or inspector 8669 Powers of registrar or inspector upon inquiry 8770 Public office of Registrar and inspection of documents 8770A Power of Registrar to reject documents etc. 88

Division 1A—Examiners 89

71A Appointment of examiners 8971B Powers of examiners 8971C Offences in relation to examiners 91

Division 2—Co-operative Housing Societies Advisory Committee 92

72 The Committee 9272A Functions of Committee 94

Division 3—General 95

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72B Secrecy 95

PART V—GOVERNMENT GUARANTEES AND INDEMNITIES 99

Division 1—Guarantees 99

73 Treasurer's guarantees 9974 Provisions relating to guarantees 10075 Aggregate liability under guarantees 10275A Execution of guarantees and entering into of agreements 102

Division 2—Indemnities 103

76 Treasurer's indemnity against loss 10377 Aggregate liability under indemnities 10577A Entering into of agreements 105

PART VI—MISCELLANEOUS 107

Division 1—Evidence 107

78 Certificates 10779 Rules 10780 Registers 10781 Minutes 10882 Entries in books 10883 Saving 108

Division 2—Offences 108

84 Failure to display name, keep rules, give returns orinformation 108

85 Acting as director after office vacated 10986 Carrying on unlawful business 11087 Carrying on business with too few members 11088 Using wrong name 11089 Improper sealing 11190 Taking money before registration 11191 False copies of rules 11192 False entries 11293 Imposition and misapplication of moneys 11294 Improper commissions 11295 General penalties 11396 Recovery of fines, penalties 11397 Civil remedies in case of contravention 113

Division 3—Regulations 114

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98 Regulations 114__________________

SCHEDULE—Repeal 115

═══════════════

ENDNOTES 116

1. General Information 116

2. Table of Amendments 117

3. Explanatory Details 126

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Version No. 095


Version incorporating amendments as at15 October 2014

An Act to consolidate the Law relating to the Formation Registration and Management of Co-operative Housing

Societies and to the Making by the Treasurer of Victoria of Certain Guarantees and Indemnities in connexion with such

Societies, and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title and commencement

This Act may be cited as the Co-operative Housing Societies Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2 Repeal Schedule

(1) The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under such Act immediately before the commencement of

1

S. 1 amended by Nos 8206 s. 14(2), 9776 s. 2(a), 10020 s. 3(1), 10254 s. 43(d), 36/1990 s. 19(a).

this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Act had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any rule regulation report notice requirement order fee application registration alteration of rules amalgamation statement election certificate transfer charge acquisition loan advance mortgage agreement return security valuation recommendation guarantee indemnity proceeding penalty liability or right made issued given paid accrued incurred or acquired or existing or continuing by or under such repealed Act before the commencement of this Act, nor shall such repeal affect the operation or effect of subsection (3) or subsection (4) of section two or of subsection (2) of section four of the Co-operative Housing Societies Act 1949, or of subsection (8) of section eighty-three of the Co-operation Act 1953.

3 Definitions

(1) In this Act unless inconsistent with the context or subject-matter—

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;

board means the board of directors of a society;

* * * * *

2

No. 6138 s. 3.

s. 3

S. 3(1) def. of authorised deposit-taking institutioninserted by No. 11/2001 s. 3(Sch. item 15.1).

S. 3(1) def. of Commissioninserted by No. 48/1992 s. 94(1), repealed by No. 37/1999 s. 58(Sch. 2 Pt 1 item 1(a)).

co-operative housing society means a society of persons—

(a) which is formed for all or any of the objects referred to in section five of this Act;

(b) which has under its rules a share capital divided into equal shares of one or more classes and not being preferential shares; and

(c) which under its rules is to terminate on a specified date or when a specified object is attained or a specified event occurs—

but does not include a Starr-Bowkett society, that is to say, a society in which the order of advances to members is determined either solely or partly by the drawing of lots;

* * * * *

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person

3

S. 3(1) def. of co-operative housing society amended by No. 8786 s. 2(a).

s. 3

S. 3(1) def. of Council inserted by No. 36/1990 s. 12, repealed by No. 48/1992 s. 104(a).

S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 1.1.), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 10.1).

is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

officer, in relation to a society, includes director, secretary, or other person empowered under the rules to act or give directions in regard to the business of the society;

Part means Part of this Act;

police officer has the same meaning as in the Victoria Police Act 2013;

preferential shares includes any shares or classes of shares in a society (by whatever name they may be described) entitled—

(a) to a fixed rate of dividend;

(b) to any other right to participate in the profits or assets of the society; or

(c) to any other rights whatsoever—

4

s. 3

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 20.1).

S. 3(1) def. of preferential shares inserted by No. 8786 s. 2(b).

in preference to any other shares or class of shares in that society or to any of the rights attaching thereto or which entitle the holders to any other preference whatsoever in respect of the payment of dividends, interest, rebates or bonuses or upon the winding up or dissolution of the society or otherwise;

prescribed means prescribed by this Act or the regulations or (where the case so requires) by the rules;

Registrar means the Registrar of Co-operative Housing Societies referred to in section 62;

regulations means regulations made under this Act;

rules means rules of a society for the time being in force;

society means co-operative housing society;

spouse of a person means a person to whom the person is married;

valuator means a person who holds the qualifications or experience specified under section 13DA(1A) of the Valuation of Land Act 19601.

(2) In this Act—

5

S. 3(1) def. of Registrar substituted by Nos 48/1992 s. 94(2), 37/1999 s. 58(Sch. 2 Pt 1 item 1(b)).

s. 3

S. 3(1) def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 1.1).

S. 3(1) def. of valuator inserted by No. 7575 s. 2, substituted by Nos 8405 s. 7(a), 91/1994 s. 36(2)(a).

(a) any reference to land or freehold property shall be deemed to include a reference to a residence area within the meaning of the Land Act 1958;

(b) any reference to the ownership of land or freehold property or to the owner thereof shall be deemed to include a reference to the right to occupy such a residence area or (as the case may be) to the holder of such a right;

(c) any reference to a mortgage of land or freehold property shall be deemed to include a reference to an encumbrance, by way of security, of the right to occupy such a residence area; and

(d) any reference to the registration of a mortgage of land or freehold property shall be deemed to include a reference to the registration, pursuant to regulations made under the said Act, of an encumbrance of the right to occupy such a residence area:

Provided that, in the making of a valuation of a residence area for any of the purposes of this Act, regard shall be had—

(i) to the limited nature of the tenure of such residence area as provided in the said Act;

(ii) to the restrictions imposed by or under the said Act upon the occupation and user thereof; and

(iii) to the fact that under the said Act the holder of the right to occupy such area may become the owner in fee simple of the land comprised therein only upon compliance with the conditions provided in the said Act including the payment of a purchase price of such land to be determined by the Minister

6

S. 3(2) Proviso amended by No. 29/2006 s. 3(Sch. 1 item 6.1).

s. 3

administering Division 11 of Part 1 of the Land Act 1958.

(3) In this Act—

(a) any reference to land or freehold property shall be deemed to include a reference to a licence to occupy land for residence purposes granted pursuant to section one hundred and thirty-eight of the Land Act 1958;

(b) any reference to the ownership of land or freehold property or to the owner thereof shall be deemed to include a reference to the right granted by such a licence or (as the case may be) the holder of such a licence;

(c) any reference to a mortgage of land or freehold property shall be deemed to include a reference to a lien, by way of security, on the improvements upon any land in respect of which such a licence is in force; and

(d) any reference to the registration of a mortgage of land or freehold property shall be deemed to include a reference to the registration, pursuant to regulations made under the said Act, of a lien on improvements as referred to in paragraph (c) of this subsection:

Provided that in the making of a valuation of such a licence as aforesaid for any of the purposes of this Act, regard shall be had—

(i) to the limited nature of the right granted by such licence as provided in the said Act;

(ii) to any restrictions imposed by or under the said Act upon the occupation and user of the land to which the licence relates; and

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s. 3

S. 3(3) Proviso amended by No. 29/2006 s. 3(Sch. 1 item 6.2).

(iii) to the fact that under the said Act the holder of the licence may purchase the land to which the licence relates only in accordance with the provisions of the said Act and at a price to be determined by the Minister administering section 138 of the Land Act 1958.

(4) In this Act and in any regulation made thereunder (whether before or after the commencement of this Act) and in the rules of every society (whether registered before or after the said commencement) any reference, however expressed, to the erection of a dwelling-house on any land shall be deemed to include and always to have included a reference to—

(a) the constructing forming levelling draining paving flagging macadamizing or otherwise making good of any portion or portions of the streets or roads abutting upon the land upon which the dwelling-house is or will be erected;

(b) the curbing flagging paving or asphalting of any portion or portions of the footways or pathways abutting upon any such land;

(c) the supplying installing and connecting of sewerage fittings and connexions to the dwelling-house;

(d) the provision of drainage for the land (whether or not wholly upon the land);

(e) the completing of the erection of the dwelling-house notwithstanding that the foundations footings framework or other portions thereof had already been constructed or commenced; and

(f) the adding of one or more rooms out-buildings or other permanent improvements

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s. 3

to a dwelling-house in respect of which an advance had previously been made by the society in question—

and any reference, however expressed, in this Act or in any rules registered or regulations made thereunder after the commencement of the Co-operative Housing Societies Act 1948 to the making of an advance for the purchase of any land on which a dwelling-house is situated shall be deemed to include a reference to the making of an advance or any part of an advance for the carrying out of all or any of the acts matters and things referred to in paragraphs (a) to (f) of this subsection in relation to the land and house purchased.

(5) In this Act—

(a) any reference to the purchase of land on which is situated a dwelling-house shall, without limiting the generality of that expression, include a reference to the purchase of a stratum estate within the meaning of the Transfer of Land Act 1958 or a lot on a registered plan of subdivision within the meaning of the Subdivision Act 1988, being a residential flat (hereinafter called a stratum estate);

(b) any reference to the making of advances upon the security of freehold property shall include a reference to the making of an advance upon the security of a mortgage of a stratum estate.

9

S. 3(5) inserted by No. 6457 s. 2 (as amended by No. 6489 s. 4(Sch. item 18(b)).

s. 3

S. 3(5)(a) substituted by No. 7551 s. 47, amended by No. 53/1988 s. 45(Sch. 3 item 6) (as amended by No. 47/1989 s. 23(2)).

S. 3(5)(b) amended by No. 7097 s. 2(a).

(6) For the purposes of the definition of domestic partner in section 3(1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

* * * * *

(8) A society may make an advance upon the security of a mortgage on a stratum estate notwithstanding that a charge to the service company takes priority over that mortgage and notwithstanding any provision of this Act or of the rules of the society to the contrary.

(9) In subsection (5) of this section residential flat means a part or parts of a building which part or parts is or are designed and intended for use as a separate dwelling-house for a single family unit and the appurtenance thereto.

3A Construction of references to Commission

A reference in this Act or the Regulations or in any instrument made for the purposes of this Act to the Victorian Financial Institutions Commission

10

S. 3(6) inserted by No. 6457 s. 2, repealed by No. 7097 s. 2(b), new s. 3(6) inserted by No. 27/2001 s. 8(Sch. 6 item 1.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 10.2).

s. 3

S. 3(7) inserted by No. 6457 s. 2, amended by No. 6821 s. 2, repealed by No. 7097 s. 2(b).

S. 3(8) inserted by No. 6457 s. 2, amended by No. 7097 s. 2(c)(i)(ii).

S. 3(9) inserted by No. 6457 s. 2, amended by No. 7097 s. 2(d).

S. 3A inserted by No. 48/1992 s. 94(3), substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 2).

s. 3A

is to be construed as a reference to the Registrar, unless a contrary intention appears.

_______________

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PART I—GENERAL

4 Formation and registration of co-operative housing societies

(1) No co-operative housing society shall carry on business unless it is formed and registered under this Act.

* * * * *

* * * * *

4A Societies excluded from Corporations legislation

The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act in relation to the whole of the Corporations legislation—

(a) a co-operative housing society;

(b) securities of a co-operative housing society.Note

This section ensures that neither the Corporations Act nor Part 3 of the ASIC Act will apply in relation to a co-operative housing society or securities of a co-operative housing society. Section 5F of the Corporations Act provides that if a State law declares a matter to be an excluded matter in relation to the whole of the Corporations

No. 6138 s. 4.

s. 4

S. 4(2) amended by Nos 6455 s. 2(Sch. 1 Pt 3(e)), 6839 s. 4(Sch. 1 Pt 3(e)), 9699 s. 23, 48/1992 s. 95(a), repealed by No. 44/2001 s. 3(Sch. item 19.1).

S. 4(3) inserted by No. 9699 s. 22, repealed by No. 44/2001 s. 3(Sch. item 19.1).

S. 4A inserted by No. 44/2001 s. 3(Sch. item 19.2).


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legislation, then that legislation will not apply in relation to that matter in the State concerned. However, other provisions of this Act apply certain provisions of the Corporations legislation to co-operative housing societies as laws of this State.

5 Objects of society

(1) A co-operative housing society may be formed for all or any of the following objects—

(a) to enable each of its members—

(i) to purchase land and to erect a dwelling-house thereon; or

(ii) to erect a dwelling-house on land already owned by him; or

(iia) to erect a dwelling-house on Crown land leased by him for a term of not less than 50 years being Crown land within an area approved by the Governor in Council for the purposes of this Act;

(iii) subject to section thirty-four of this Act to purchase land upon which is situated a dwelling-house; or

(iiia) to maintain and keep in proper repair his dwelling-house; or

(iv) where the approval of the Governor in Council given after consideration of a report by the registrar is first obtained—to discharge a mortgage held by another society upon any land; or

No. 6138 s. 5.

s. 5

S. 5(1)(a)(iia) inserted by No. 8978 s. 2(1).

S. 5(1)(a)(iii) substituted by No. 7097 s. 3(a), amended by No. 7332 s. 2(Sch. 1 item 14).

S. 5(1)(a)(iiia) inserted by No. 6821 s. 3(b), amended by No. 7332 s. 2(Sch. 1 item 15).


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(v) to discharge a mortgage or any other charge or security over or affecting any land which mortgage charge or security was granted or executed by the member in question in anticipation of the society's making an advance to him and with the approval of the registrar to the making of the advance; and

(b) for all or any of those purposes to make advances to its members upon the security of freehold property or a lease for a term of not less than 50 years of Crown land within an area approved by the Governor in Council for the purposes of this Act.

(2) In this section purchase includes the completion of a purchase under an existing contract of sale and the discharge of a mortgage within the meaning of the Sale of Land Act 1962, given to a vendor or other person pursuant to the provisions of section four of that Act.

6 Power of society to raise money on loan

(1) A society may, subject to this Act and its rules, raise money on loan or in accordance with section 33(1A) for the objects of the society.

(2) Subsection (1) does not apply to section 33(1B), (1C) or (1D).

_______________

S. 5(1)(a)(v) amended by No. 7097 s. 3(b).

S. 5(1)(b) amended by No. 8978 s. 2(2).

S. 5(2) amended by No. 7097 s. 3(c).

No. 6138 s. 6.S. 6 amended by Nos 36/1990 s. 14(1), 37/1999 s. 58(Sch. 2 Pt 2 item 1) (ILA s. 39B(1)).

s. 6

S. 6(2) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 1).


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PART II—INCORPORATION OF SOCIETIES

Division 1—Registration, &c.

7 Liability and membership

(1) A society shall be formed with limited liability.

(2) Unless otherwise provided by the rules, any person who is not under the age of sixteen years shall subject to this Act be eligible to be a member of a society.

(3) A member of a society shall not at any time be entitled on any ground relating to his minority or former minority to avoid any of his obligations or liabilities as a member of the society or under any mortgage given by him to the society.

(4) No person shall at any one time be a member of more than one society unless—

(a) before becoming a member of each society (other than the one of which he is first a member) he obtains the consent in writing of the registrar; and

(b) all societies of which he is a member have the same registered office:

Provided that in the case of a person who was lawfully a member of two societies before the commencement of the Co-operative Housing Societies Act 1950 nothing in this subsection shall be deemed—

(a) to require any consent of the registrar to his membership of either such society; or

(b) to render his membership of either such society unlawful:

Provided further that nothing in this subsection shall apply to or in respect of any person becoming or being registered as the holder of

No. 6138 s. 7.S. 7 amended by No. 6909 s. 2.

s. 7

S. 7(3) substituted by No. 9075 s. 5(2).

S. 7(4) Further Proviso amended by No. 8298 s. 2.


15

shares in any society as executor or administrator of a deceased member or as the trustee within the meaning of the Commonwealth Act known as the Bankruptcy Act 1966 as amended from time to time of the estate of a member or deceased member.

8 Formation and registration of societyS. 8(1) amended by Nos 6821 s. 4(a), 9075 s. 5(2), 36/1990 s. 13(a).s. 8

(1) A society may be formed by any five or more persons who are not under the age of eighteen years and who are eligible under this Act and the rules as later approved and registered to be members of the society.

(2) No society shall be registered unless there has been a meeting at which there have been present five or more such persons.

(3) At the meeting there shall be presented—

(a) a written statement showing the objects of the society and the reasons for believing that, when registered, it will be able to carry out its objects successfully; and

(b) a copy of the rules which it is proposed to tender for registration.

* * * * *

(5) If at the same or any subsequent or adjourned meeting, after consideration of the statement and rules, five or more such persons as aforesaid approve the rules with or without amendment and sign an application for membership, they shall

No. 6138 s. 8.

S. 8(2) amended by Nos 6821 s. 4(a), 36/1990 s. 13(a).

S. 8(3) amended by No. 6821 s. 4(b).

S. 8(4) repealed by No. 6821 s. 4(c).

S. 8(5) amended by Nos 6821 s. 4(d), 36/1990 s. 13(a).


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proceed to elect the first directors of the society in accordance with the rules as so approved.

(6) Within two months after the election of directors an application shall be made in the prescribed manner to the registrar for the registration of the society and shall be accompanied by—

(a) a statutory declaration or statutory declarations by the persons who acted as chairman and secretary of the meeting as to compliance with the requirements of this section;

(b) a copy of the statement presented to the meeting;

(c) two copies of the proposed rules signed by not less than five applicants for membership, each of whose signatures shall be attested by a witness;

(d) a list containing the full name and the occupation and address of each director;

(e) a list containing the full name and the occupation and address of each applicant for membership and the number of shares subscribed for by him; and

(f) such other particulars as are prescribed by regulation:

Provided that where before the expiration of the said period of two months a request in writing for the extension of that period is lodged with the registrar and the registrar is satisfied that circumstances beyond the control of the society have precluded and will preclude the making of the application for registration within the said period of two months, the registrar may if he thinks fit by writing extend the period for the making of the application by such further period

s. 8

S. 8(6)(c) amended by Nos 6821 s. 4(e), 36/1990 s. 13(a).


17

(not exceeding one month) as he thinks proper, and in any such case the making of the application within such further period shall be deemed and taken to be in compliance with the provisions of this Act.

(7) The statutory declaration or statutory declarations mentioned in subsection (6) of this section may be accepted by the registrar as sufficient evidence of compliance with the requirements of this section.

S. 8(8) amended by Nos 8339 s. 2(1)(Sch. 2 item 2(i)), 36/1990 s. 13(b).s. 8

(8) If the registrar is satisfied that the society has complied with the provisions of this Act and the regulations, that the proposed rules of the society are not contrary to this Act or to the regulations and are suitable and sufficient for the purposes of the society, and that there are reasonable grounds for believing that the society will be able to carry out its objects successfully, the registrar may register the society and its rules and issue a certificate in the prescribed form to the effect that the society is incorporated under this Act.

(9) The expenses of and incidental to the formation of the society may be paid either out of capital or out of income.


18

9 As to names of societies

(1) A society may not be registered by a name identical with that by which a society is already registered, or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the Registrar is calculated to deceive.

(2) If a society through inadvertence or otherwise is registered by a name identical with that by which a society is already registered, or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the registrar to be calculated to deceive, the society shall, if the registrar so directs, change its name.

(3) A society may change its name by special resolution if the new name is not identical with that of any society previously registered and still subsisting or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the Registrar is calculated to deceive unless the

No. 6138 s. 9.

S. 9(1) amended by Nos 6455 s. 2(Sch. 1 Pt 3(e)), 6839 s. 4(Sch. 1 Pt 3(e)), 119/1986 s. 142(Sch. 2 item 3) (as amended by No. 36/1990 s. 23(c)), 48/1992 s. 95(b), substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 3), amended by No. 44/2001 s. 3(Sch. item 19.3).

s. 9

S. 9(2) amended by Nos 37/1999 s. 58(Sch. 2 Pt 1 item 4), 44/2001 s. 3(Sch. item 19.3).

S. 9(3) substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 5), amended by No. 44/2001 s. 3(Sch. item 19.3).


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society or body corporate is in course of being wound up and consents in writing to the registration.

(4) Notice in writing of any change of name, together with the certificate of incorporation, shall be sent to the registrar within such time after the passing of the special resolution as is prescribed.

(5) The registrar shall register the change of name, and shall either note the change on the certificate of incorporation or issue a new certificate of incorporation in lieu thereof in the prescribed form.

(6) The change of name shall be advertised as prescribed.

(7) The change of name shall not affect the identity of the society or any right or obligation of the society or of any member or other person, or render defective any legal proceedings by or against the society.

(8) Any legal proceedings that might have been continued or commenced against the society by its former name may be continued or commenced against it by its new name.

10 Certificate of incorporation as evidence

A certificate of incorporation under this Act shall be conclusive evidence that all the requirements of this Act in respect of registration and matters precedent or incidental thereto have been complied with:

Provided that nothing in this section shall affect any provision of this Act relating to the winding up or dissolution of the society or the cancellation of its registration.

No. 6138 s. 10.

s. 10


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Division 2—Mergers and transfers of engagements

11 Application for merger or transfer of engagements between societies

(1) If 2 or more societies propose to consolidate all or any of their assets, liabilities and undertakings by way of merger, or transfer of engagements, the societies may, after complying with this section, apply for the registration of the merger, or transfer of engagements.

(2) The proposed merger, or transfer of engagements, must have been approved by a special resolution of each society involved unless the Registrar has determined that it may be approved by the society's board.

(3) A society that is to approve the proposed merger, or transfer of engagements, by special resolution must send to each of its members a statement approved by the Registrar specifying—

(a) the financial position of each of the societies as shown in financial statements that have been prepared as at a date that is not more than 6 months before the date of the statement; and

(b) any interest that any officer of any of the societies has in the proposed merger, or transfer of engagements; and

No. 6138 ss 11–23.Pt 2 Div. 2 (Heading and ss 11–23) amended by No. 8786 s. 3, substituted as Pt 2 Div. 2 (Heading and ss 11–18) by No. 48/1992 s. 96.

S. 11 substituted by No. 48/1992 s. 96.

s. 11

S. 11(2) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).



21

(c) any compensation or other consideration proposed to be paid, or any other incentive proposed to be given, to any officer or member of a society in relation to the proposed merger, or transfer of engagements; and

(d) whether the proposal is a merger, or transfer of engagements and the reason for the merger, or transfer of engagements; and

(e) the effect of the merger or transfer of engagements on entitlements and liabilities of members; and

(f) in the case of a merger—

(i) subject to section 9, the proposed name of the merged society;

(ii) the proposed address of the office of the merged society;

(iii) the proposals for the management and control of the business and operations of the merged society, pending election of a board of directors;

(iv) the proposed rules of the merged society;

(g) any other matter specified by the Registrar.

(4) The statement mentioned in subsection (3) must be sent to the members of the society so that it will, in the ordinary course of post, reach each member who is entitled to vote on the special resolution not less than 21 days before the date of the meeting at which the resolution is to be decided.

s. 11

S. 11(3)(g) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).


22

(5) The Registrar may exempt a society from having to comply with subsection (3).

(6) The Registrar may grant an exemption, or approve a statement, subject to any conditions it considers appropriate.

(7) An application for the registration of a merger or transfer of engagements under this Division must be made in the way and form required by the Registrar.

(8) An application for a proposed merger must be accompanied by 2 copies of the proposed rules of the merged society and any other particulars required by the Registrar.

12 Registrar may register merged society

(1) If, in relation to an application under this Division by societies for registration of a proposed merger, the Registrar is satisfied that—

(a) the societies involved have complied with section 11; and

(b) the proposed rules of the merged society are adequate; and

(c) each authorised deposit-taking institution or other person (if any) in whose favour a guarantee under Part V is in force in relation to the societies consents to the merger;

(d) the certificates of incorporation of the societies involved in the merger have been surrendered to the Registrar; and






s. 12


S. 12(1)(c) amended by No. 11/2001 s. 3(Sch. item 15.2).

S. 12(1)(d) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).


23

(e) there is no good reason why the merged society and its rules should not be registered—

the Registrar must—

(f) register the merged society; and

(g) register its rules; and

(h) cancel the registration of the societies involved in the merger.

(2) On registering the merged society, the Registrar must issue a certificate of incorporation to the society.

(3) A merger takes effect on the issue of the certificate of incorporation under subsection (2).

13 Certificate confirming transfer of engagements between societies

(1) If, in relation to an application under this Division by societies for registration of a proposed transfer of engagements, the Registrar is satisfied that—

(a) the societies involved have complied with section 11; and

(b) the rules, or proposed rules, of the transferee society are adequate; and

(c) the certificate or certificates of incorporation of the transferor society or societies has or have been surrendered to the Registrar; and

(d) each authorised deposit-taking institution or other person (if any) in whose favour a guarantee under Part V is in force in relation to the societies consents to the transfer;



s. 13


S. 13(1)(c) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).

S. 13(1)(d) amended by No. 11/2001 s. 3(Sch. item 15.2).


24

(e) there is no good reason why the transfer of engagements should not take effect;

the Registrar must—

(f) issue a certificate confirming the transfer of engagements; and

(g) cancel the registration of the transferor society or societies.

(2) A transfer of engagements takes effect on the issue of the certificate of the Registrar under subsection (1).

14 Registrar may direct a transfer of engagements between societies

(1) The Registrar may, by written notice given to a society, direct it to transfer its engagements to another society if the board of the other society has, by resolution, consented to the proposed transfer.

(2) The Registrar must give a copy of the direction to the other society.

(3) The Registrar must not direct a society to transfer its engagements under this section unless—

(a) the Registrar is of the opinion that—

(i) the society has contravened this Act or the society's rules and, after being given written notice of the contravention by the Registrar, has allowed the



s. 14




S. 14(3)(a) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).

S. 14(3)(a)(i) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).


25

contravention to continue or has again contravened this Act or the rules; or

(ii) the society is trading unprofitably or has a deficiency in its net tangible asset position; or

(iii) the affairs of the society are being conducted in an improper or financially unsound way; or

(b) after making such inquiries in relation to one or both of the societies as the Registrar considers appropriate, the Registrar is satisfied that it is in the interest of members or creditors of the society that is to be directed to transfer its engagements; or

(c) the Registrar has certified, in relation to the society, that any of the events mentioned in section 49A(17)(a), (b), (c), (d) or (f) has happened.

15 Society to comply with direction

(1) A society must take all reasonable steps to comply with a direction under this Division to transfer its engagements.

Penalty:200 penalty units.

(2) An officer of a society must not—

(a) fail to take all reasonable steps to secure compliance by the society with a direction to transfer its engagements; or

(b) by a wilful act or omission, be the cause of a failure by the society to comply with a direction to transfer its engagements.


S. 14(3)(b) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).

S. 14(3)(c) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).


s. 15


26

16 Day on which transfer of engagements takes effect

(1) The society directed to transfer its engagements, and the society the board of which has consented to the transfer, must apply to the Registrar for a certificate confirming the transfer—

(a) within the time specified in the direction; and

(b) in the way and form required by the Registrar.

(2) Unless the Registrar is satisfied that there is good reason for refusing the application, the Registrar must issue a certificate confirming the transfer of engagements.

(3) The transfer of engagements takes effect on the issue of the certificate under subsection (2).

(4) The society directed to transfer its engagements must surrender its certificate of incorporation to the Registrar and the Registrar must cancel the registration of the society.

17 Effect of merger

On a merger of societies under this Division taking effect—

(a) the members of the societies that are parties to the merger become members of the merged society; and

(b) the property of the societies that are parties to the merger vests in the merged society without any conveyance, transfer or assignment; and


s. 16


S. 16(1)(b) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 6).





27

(c) any property vested in a merged society under this section remains subject to any debt, liability or obligation affecting the property; and

(d) all debts and liabilities of the societies that are parties to the merger, are debts and liabilities of the merged society; and

(e) in all documents (including, for example, a contract to which a society that is a party to the merger was a party), a reference to a society that was a party to the merger is a reference to the merged society.

18 Effect of transfer of engagements

On a transfer of engagements under this Division taking effect, the following provisions apply to the extent necessary to give effect to the transfer—

(a) persons who were members of a transferor society immediately before the transfer of engagements took effect are members of the transferee society in accordance with its rules;

(b) property of a transferor society that was such immediately before the transfer took effect vests in the transferee society without any conveyance, transfer or assignment;

(c) any property vested in a transferee society under this section remains subject to any debt, liability or obligation affecting the property;

(d) the debts and liabilities of a transferor society immediately before the transfer of engagements took effect are debts and liabilities of the transferee society;

(e) in all documents (including, for example, a contract to which the transferor society was a

S. 17(d) amended by No. 61/1997 s. 7.

S. 17(e) inserted by No. 61/1997 s. 7.


s. 18

S. 18(e) inserted by No. 61/1997 s. 8.


28

party), a reference to the transferor society is a reference to the transferee society.

18A References to documents

A reference in section 17(e) or 18(e) to a document includes a reference to a document created or amended before the commencement of section 9 of the Financial Institutions Legislation (Amendment) Act 1997 in which there is a reference to a society that was a party to a merger on or after 1 July 1992 or to a transfer of engagements on or after that date.

* * * * *

Division 3—Members and Funds

24 Members of societies

(1) The members of a society which is formed under this Act shall be the persons who sign the application for membership on the formation of the society, and any other persons who are admitted to membership in accordance with this Act and the rules of the society.

(2) No rights of membership shall be exercised by any member until he has made such payment to the society in respect of membership or acquired such share or interest as is provided in the rules of the society in that behalf.

(3) A person shall cease to be a member in any of the following circumstances, that is to say—

S. 18A inserted by No. 61/1997 s. 9.

s. 18A

Ss 19–23 repealed by No. 48/1992 s. 96.

No. 6138 s. 24.


29

(a) where his shares are transferred to another person in accordance with the rules of the society, and the transferee is registered as holder in his place;

(b) where his shares are forfeited in accordance with the rules of the society;

(c) where any power of sale (whether expressed or implied) in any mortgage given by the member to the society is exercised by the society;

(ca) where the mortgage given by the person to the society is assigned or transferred by the society (unless there is another mortgage given by the person);

(d) where he becomes bankrupt or insolvent under any law relating to bankruptcy or insolvency and the official receiver or assignee disclaims in accordance with the provisions of such law;

(e) on death:

Provided that the estate of the deceased person shall remain liable and his executor or administrator shall be and may be registered as the holder of the shares as such executor or administrator (whether eligible to be a member of the society or not) until some eligible person is registered as the holder of the shares by transfer from the executor or administrator or until the shares are withdrawn or discharged in accordance with this Act and the rules of the society, and while any such executor or administrator is so registered he shall be deemed to be and shall have the rights and obligations of a member of the society for all purposes other

S. 24(3)(c) substituted by No. 6618 s. 2.

S. 24(3)(ca) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 2).

s. 24


30

than voting at meetings of the society and becoming a director thereof;

(f) where the contract of membership is rescinded on the ground of misrepresentation or mistake;

(g) where he ceases to be a member in accordance with the rules of the society;

(h) where the value of his shares is repaid or a refund in respect of his subscriptions is made to him in accordance with the rules of the society.

(4) Where shares are held by the executor or administrator of a deceased member, the Board may in its discretion by notice in writing to the executor or administrator call upon him to transfer the shares to an eligible person or to withdraw or discharge the shares within six months after receipt of the notice or within such further time as the Board may in any particular case allow, and unless the shares are so transferred withdrawn or discharged they may at the discretion of the society be forfeited and dealt with as forfeited shares in accordance with this Act and the rules of the society.

(5) Where a person becomes the trustee within the meaning of the Commonwealth Act known as the Bankruptcy Act 1966 as amended from time to time of the estate of a member or deceased member the trustee may be registered as the holder of the shares of the member as such trustee (whether eligible to be a member of the society or not) until some eligible person is registered as the holder of the shares by transfer from the trustee or until the shares are withdrawn or discharged in accordance with the provisions of this Act and the rules of the society and while the trustee is so registered he shall be deemed to be and shall have

s. 24

S. 24(5) inserted by No. 8298 s. 3.


31

the rights and obligations of a member of the society for all purposes other than voting at meetings of the society and becoming a director thereof.

25 Capital and shares

(1) The capital of a society shall vary in amount according to the nominal value of shares from time to time subscribed.

(2) The capital shall be divided into shares of a fixed amount which shall be specified in the rules and the shares may be shares of one or more classes as are specified in the rules; and no preferential shares may be issued or allotted.

(3) In every society the rules shall provide that an advance is to be made to a member only on condition that the member subscribes for shares of a nominal value equivalent to the amount of the advance.

(4) Any balance unpaid in respect of shares at the time of allotment shall be paid by periodic subscriptions or in such manner as is specified in the rules.

(5) No member shall hold more than such proportion of the shares in a society as is prescribed by the rules.

(6) A member shall subscribe for such minimum number of shares as is prescribed by the rules.

(7) A share may be held by two or more persons jointly and, in such case, notices for the purposes of the society may be given to the joint holder whose name appears first on the register of shares in respect of the share.

(8) A share may not be sold or transferred without the consent of the board.

26 Liability of members

No. 6138 s. 25.

s. 25

S. 25(2) substituted by No. 8786 s. 4.

No. 6138 s. 26.


32

(1) A member shall be liable to the society for the amount, if any, unpaid on the shares held by him, together with any charges and other moneys payable by him to the society as prescribed by this Act or the rules of the society.

(2) Where, under or in relation to any contract or policy of life insurance or similar contract in a form approved by the registrar after consideration of a report thereon from the Government Statist, or by virtue of any legal or equitable assignment of or trust created in respect of any such contract or policy, or pursuant to any scheme relating to life insurance approved by the registrar after consideration of such a report, provision is made whereby, in the event of the death of a member of a society to whom the contract policy or scheme applies or in the event of the death of a member's spouse or domestic partner to whom the contract policy or scheme applies, moneys will be available for or towards the discharge of the member's liability to the society, then the society shall be empowered—

(a) to receive from any such member, at such times as are agreed upon by the member and the society, the amount of each periodical premium or contribution payable by him in respect of the contract or policy or pursuant to the scheme; and

(b) to pay or otherwise deal with each such amount in such manner as the contract policy or scheme requires or allows; and

s. 26

S. 26(2) substituted by No. 6461 s. 2 (as amended by No. 6489 s. 4(Sch. item 19)) amended by No. 27/2001 s. 8(Sch. 6 item 1.3).


33

(c) if the member defaults in payment of any such amount at the agreed time—

(i) to make payment thereof pursuant to the contract policy or scheme on his behalf or to take such other action as the contract policy or scheme requires or allows; and

(ii) to recover from the member any amount in respect of which the member has made default as aforesaid—

and any amount so recoverable shall until paid be a debt due to the society by the member and the provisions of this Act shall apply in relation thereto accordingly. The society may make either by itself or in conjunction with any other society or societies any contract or arrangement relating to or connected with the carrying into effect of this subsection and may carry out any such contract or arrangement.

(3) Where, under or in relation to any contract or policy of accident or sickness insurance or similar contract in a form approved by the registrar after consideration of a report thereon from the Government Statist, or by virtue of any legal or equitable assignment of or trust created in respect of any such contract or policy or pursuant to any scheme relating to accident or sickness insurance approved by the registrar after consideration of such a report, provision is made whereby in the event of any accident to or sickness of a member of a society to whom the contract policy or scheme applies or in the event of any accident to or sickness of a member's spouse or domestic partner to whom the contract policy or scheme applies moneys will be available for or towards the discharge of the member's liability to the society, then the society shall be empowered—

s. 26

S. 26(3) inserted by No. 6618 s. 3, amended by No. 27/2001 s. 8(Sch. 6 item 1.3).


34

(a) to receive from any such member, at such times as are agreed upon by the member and the society, the amount of each periodical premium or contribution payable by him in respect of the contract or policy or pursuant to the scheme; and

(b) to pay or otherwise deal with each such amount in such manner as the contract policy or scheme requires or allows; and

(c) if the member defaults in payment of any such amount at the agreed time—

(i) to make payment thereof pursuant to the contract policy or scheme on his behalf or to take such other action as the contract policy or scheme requires or allows; and

(ii) to recover from the member any amount in respect of which the member has made default as aforesaid—

and any amount so recoverable shall until paid be a debt due to the society by the member and the provisions of this Act shall apply in relation thereto accordingly. The society may make either by itself or in conjunction with any other society or societies any contract or arrangement relating to or connected with the carrying into effect of this subsection and may carry out any such contract or arrangement.

27 Cancellation of shares

A society may cancel any share purchased by or forfeited to the society in accordance with the rules of the society.

No. 6138 s. 27.

s. 27


35

28 Society's charge on shares

A society shall have a charge upon the share or interest in the capital of a member or past member in respect of any debt due from the member or past member to the society, and may set off any sum credited or payable to a member or past member in or towards payment of the debt.

29 Payment of sum due on unadvanced shares without probate

Notwithstanding anything to the contrary in the rules of any society, where a member of a society to whom an advance has not been made dies and upon the withdrawal of his shares there is payable by the society a sum not exceeding $400, then the society may—

(a) after the expiration of two months from the death of the said member if probate or letters of administration have not been produced to the secretary and notice in writing of intention to apply therefor has not been received by the secretary; or

(b) after the expiration of three months from the death of the said member if such notice of intention to apply has been received by the secretary within the period of two months from the death but probate or letters of administration have not been produced to the secretary—

pay the said sum to the person or persons appearing to the directors to be entitled thereto according to law as on the intestacy of the deceased member and any such payment shall be valid and effectual with respect to any demand against the society or the directors by any other persons as the said member's next of kin legatees or personal representatives, but such next of kin

No. 6138 s. 28.

s. 28

No. 6138 s. 29.


36

legatees or personal representatives shall nevertheless have the right to recover the whole or any portion of any such sum so paid from the person or persons who have received the same from the society.

Division 4—Privileges, powers, and duties

30 Society to be a body corporate

A society shall be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and shall have power to enter into contracts, to institute and defend actions suits and legal proceedings, and to do all things necessary for the purpose of its constitution.

31 Exemption from fees

No fee shall be chargeable for the registration of a society or of its rules or of any alteration of its rules.

32 Acquisition of property

(1) A society may acquire by lease purchase donation devise bequest or otherwise any real or personal property for any objects of the society and may sell or lease any such real or personal property.

(2) A society may if authorized in writing by the registrar become a member of a society registered under the Co-operation Act 1958 and may with the approval of the registrar take such shares and make any other investment in any such society as the registrar approves.

No. 6138 s. 30.

s. 30

No. 6138 s. 31

No. 6138 s. 32.S. 32 amended by No. 6821 s. 5(a).

S. 32(2) inserted by No. 6821 s. 5(b).


37

33 Raising loans

(1) With the approval of the registrar a society may raise money on loan in such manner as it thinks fit, and in particular, without limiting the generality of the foregoing, by legal or equitable mortgage charged upon the undertaking of the society or upon all or any part of the property and rights (both present and future) of the society, including its unpaid capital, subscriptions, payments in respect of advances and other moneys.

(1A) With the approval of the registrar, a society may raise money—

(a) by granting a right, entitlement or interest in or in respect of; or

(b) by the transfer or assignment of—

its interest under a mortgage of freehold land.

(1B) With the approval of the registrar and subject to such conditions as the registrar determines, a society may assign or transfer its interest under a mortgage of freehold land for the purpose of—

(a) raising money for the repayment by the society in whole or in part of any loan made to the society; or

(b) extinguishing the loan.

(1C) A society must, if the registrar so directs, assign or transfer its interest under a mortgage of freehold land for a purpose referred to in subsection (1B).

(1D) The registrar must not give a direction under subsection (1C) unless satisfied that the assignment or transfer would not disadvantage the members of the society.

No. 6138 s. 33.

s. 33

S. 33(1A) inserted by No. 36/1990 s. 14(2).

S. 33(1B) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 3).

S. 33(1C) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 3).

S. 33(1D) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 3).


38

(1E) Upon the assignment or transfer under subsection (1B) or (1C) of a mortgage given by a member to a society—

(a) the shares of the member in the society related to the mortgage are cancelled; and

(b) the member ceases to be a member by reason of that mortgage;

(c) the amount owing by the member under or in respect of the mortgage is reduced by the amount (if any) paid up in respect of the shares.

(2) A society shall not be authorized to receive money on deposit.

* * * * *

(4) Except as may be provided in any agreement made in relation to a guarantee executed by the Treasurer of Victoria under this Act, no person lending money to a society shall be bound to see to the application thereof or be in any way affected or prejudiced by the fact that such society in borrowing such money has contravened the provisions of this or any other section of this Act or the rules of the society.

(5) Where the Treasurer of Victoria pursuant to Division one of Part V of this Act executes a guarantee in favour of any authorised deposit-taking institution or approved body guaranteeing the repayment of any loan to be made by such authorised deposit-taking institution or approved body to any society registered under this Act, then notwithstanding anything to the contrary in any Act or in any memorandum or articles of association or rules, such authorised deposit-taking institution or approved body shall be

S. 33(1E) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 3).

S. 33(3) repealed by No. 6821 s. 6.

s. 33

S. 33(5) amended by No. 11/2001 s. 3(Sch. item 15.3).


39

deemed to be empowered to make such loan out of any funds held by it which it is authorized to invest and in respect of which investment on loan as aforesaid is not specifically prohibited by the terms of any trust governing such funds.

(6) Any mortgage given as security for any money raised on loan by a society under the powers conferred by this section may within thirty days after its execution be registered by filing in the office of the registrar a true copy thereof verified by statutory declaration.

(7) The registrar shall cause to be entered in a register to be kept by him for the purpose short particulars (including the names of the parties and the consideration) of every copy mortgage so filed with him with a memorandum of the date hour and time at which each of them is so filed, and that date hour and time shall in the case of each mortgage be the date hour and time of registration.

(8) The registrar may at any time, upon evidence being given to his satisfaction that the debt for which any registered mortgage was given has been paid or satisfied, or that a discharge of mortgage as to the whole or any part of the property mortgaged has been executed, cause a memorandum to that effect to be entered in the register.

(9) The register so kept and every copy mortgage filed as aforesaid shall be open to inspection at the office of the registrar by any person on payment of the prescribed fee (if any).

(10) A mortgage shall not, unless registered in accordance with this section, be of any validity as against any subsequent mortgagee whose mortgage is duly registered in accordance with this section before the registration of such first-mentioned mortgage except in the case of fraud;

s. 33


40

and, except in the case of fraud, the priority of all mortgages duly registered in accordance with this section shall be determined by the order of registration and not of date, and shall not be affected by notice actual or constructive of any unregistered mortgage, or of any contract therefor, and the knowledge that any such mortgage, or contract is in existence shall not of itself be imputed as fraud; and every second or subsequent mortgage shall, if duly registered in accordance with this section, become, upon such registration and upon satisfaction of all prior mortgages registered in accordance with this section, a first mortgage.

(11) Where before the commencement of the Co-operative Housing Societies Act 1946 any such mortgage as aforesaid has been given by a society and has not been wholly satisfied, and a true copy of the mortgage has been filed in accordance with subsection (6) of this section within thirty days after the commencement of the said Act, the mortgage shall, except in the case of fraud, be deemed to have been registered as at the date of execution thereof, and the particulars and memorandum thereof shall be entered in the register accordingly, and the provisions of subsections (8), (9), (10), and (12) of this section shall apply with respect to such mortgage accordingly.

(12) The Supreme Court, on being satisfied that the omission to register a mortgage within the time required by this section or the omission or mis-statement of any particular with respect to any such mortgage or in any memorandum of satisfaction was accidental or due to inadvertence or to some other sufficient cause or is not of a nature to prejudice the position of creditors or members of the society or that on any other

s. 33

S. 33(12) amended by No. 57/1989 s. 3(Sch. item 33.1(a)(b)).


41

grounds it is just and equitable to grant relief, may on the application of the society or any person interested and on such terms and conditions as seem to the Court just and expedient order that the time for registration be extended or (as the case may be) that the omission or mis-statement be rectified.

(13) Nothing in the last seven preceding subsections shall apply to any mortgage solely of specific land duly registered in accordance with the Property Law Act 1958 or the Transfer of Land Act 1958.

33A Society may act as trustee or agent

(1) A society may act as trustee or agent for an approved housing finance provider for such purposes connected with mortgages of freehold land and on such terms and conditions as are approved from time to time by the registrar.

(2) The registrar may declare a body corporate to be an approved housing finance provider for the purposes of subsection (1).

(3) The registrar may revoke a declaration made under subsection (2).

34 As to advances by societies

(1) A society shall not make any advance to any person who is not a member of the society.

(2) A society shall not make any advance to a member of the society—

(a) except for the purpose of enabling such member—


s. 33A

S. 33A(1) amended by No. 48/1992 s. 104(b).



No. 6138 s. 34.


42

(i) to purchase land and erect a dwelling-house thereon; or

(ii) to erect a dwelling-house on land already owned by him; or

(iia) to erect a dwelling-house on Crown land leased by him for a term of not less than 50 years being Crown land within an area approved by the Governor in Council for the purposes of this Act;

(iii) to purchase land upon which is situated a dwelling-house; or

(iiia) to maintain and keep in proper repair his dwelling-house;

(iv) (where the approval of the Governor in Council given after consideration of a report by the registrar is first obtained) to discharge a mortgage held by another society upon any land; or

(v) to discharge a mortgage or any other charge or security over or affecting any land which mortgage charge or security was granted or executed by the member in anticipation of the society's making an advance to him, and in any such case the advance shall not be made by the society without the prior approval of the registrar;

S. 34(2)(a)(iia) inserted by No. 8978 s. 3.

S. 34(2)(a)(iii) amended by Nos 6821 s. 7(a), 7097 s. 4(a)(i)(ii), 7575 s. 3, substituted by No. 7983 s. 2.

S. 34(2)(a)(iiia) inserted by No. 6821 s. 7(b).

s. 34

S. 34(2)(a)(v) amended by No. 7097 s. 4(b).


43

(vi) in circumstances approved by the registrar to alter or improve his or her dwelling-house; or

(vii) in circumstances approved by the registrar to discharge a mortgage or other charge or security over or affecting land; and

* * * * *

(c) unless the board is satisfied that the member intends to reside in the dwelling-house erected or to be erected on such land and is not already the owner of more than one dwelling-house (other than the dwelling-house in relation to which the advance is to be made).

(3) A society shall not make any advance on the security of any property which is subject to a prior mortgage, unless the prior mortgage is in favour of the society or another co-operative housing society having the same registered office as the first-mentioned society.

(4) Every mortgage executed as security for an advance by a society must be registered under the Transfer of Land Act 1958.

(5) Any property to which a society may become absolutely entitled by foreclosure surrender or other extinguishment of the right of redemption

S. 34(2)(a)(vi) inserted by No. 36/1990 s. 16(a), amended by No. 48/1992 s. 104(c).S. 34(2)(a)(vii) inserted by No. 36/1990 s. 16(a), amended by No. 48/1992 s. 104(c).

S. 34(2)(b) amended by No. 8339 s. 2(1)(Sch. 2 item 2(ii)), repealed by No. 36/1990 s. 16(b).

s. 34

S. 34(3) amended by No. 8543 s. 2.

S. 34(4) substituted by No. 85/1998 s. 24(Sch. item 14).


44

shall as soon afterwards as may be conveniently practicable be sold or converted into money.

(6) In this section purchase includes the completion of a purchase under an existing contract of sale and the discharge of a mortgage within the meaning of the Sale of Land Act 1962, given to a vendor or other person pursuant to the provisions of section 4 of that Act.

35 Contracts by society

(1) Contracts on behalf of a society may be made varied or discharged as provided in this section.

(2) Any contract which, if made between private persons, would be by law required to be in writing and under seal, may be made on behalf of the society in writing under the common seal of the society, and the contract may in the same manner be varied or discharged.

(3) Any contract which, if made between private persons, would be by law required to be in writing and signed by the party to be charged therewith, may be made on behalf of the society in writing, signed by any person acting under the express or implied authority of the society, and the contract may in the same manner be varied or discharged.

(4) Any contract which, if made between private persons, would by law be valid, although made by parol only and not reduced into writing, may be made by parol on behalf of the society by any person acting under the express or implied authority of the society, and the contract may in the same way be varied or discharged.

(5) Any contract made according to the provisions of this section shall be effectual in law and shall be

S. 34(6) inserted by No. 8543 s. 3.

No. 6138 s. 35.

s. 35


45

binding upon the society and all other parties thereto.

36 As to name and address of society

(1) The name of a society shall include the words "co-operative housing society" as part of the name and the word "limited" as the last word of the name.

(2) The name of a society shall be inscribed in legible characters on its seal, and shall be stated in legible characters in all notices, advertisements, and other official publications of the society, and in all bills of exchange, cheques, promissory notes, endorsements, orders for money, receipts, and other documents required in the business of the society.

(3) The name of the society with a statement that the society is registered under this Act shall be painted or affixed, and kept painted or affixed, on the outside of its office in a conspicuous place and in letters which are clearly legible.

(4) The office of the society shall be registered as prescribed, and notice of any change of address shall be transmitted to the registrar within fourteen days after the change.

37 Service of documents on society

Any document may be served on a society by leaving it at the registered office of the society with some person apparently in the service or employment of the society or by sending it by post addressed to the society at its registered office.

38 Effect of rules

No. 6138 s. 36.

s. 36

No. 6138 s. 37.

No. 6138 s. 38.


46

The rules of a society shall bind the society and all members thereof and all persons claiming through them respectively to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were contained in the rules a covenant on the part of each member and his personal representatives to observe all the provisions of the rules, subject to the provisions of this Act and the regulations.

39 Registers and accounts

(1) A society shall keep such registers and accounts as are prescribed.

(2) The registers shall include the following, that is to say—

(a) a register of the directors members and shares;

(ab) a register of the secretaries of the society;

(b) a register of any loans raised and securities given by the society; and

(c) a register of any advances made and securities taken by the society.

(3) The registers shall be kept in such manner and shall contain such particulars as are prescribed.

(4) No notice of any trust, expressed implied or constructive, shall be entered in any register or be received by the society.

40 Inspection of registers etc.

A society shall have at its office and open at all reasonable hours to inspection by any member or creditor without fee—

No. 6138 s. 39.

s. 39

S. 39(2)(ab) inserted by No. 9136 s. 4(3)(a).

S. 39(4) amended by No. 8181 s. 2(1)(Sch. item 27).

No. 6138 s. 40.


47

(a) a copy of this Act and the regulations;

(b) a copy of the rules of the society;

(c) a copy of the last audited balance-sheet and final accounts, together with the report of the auditor;

(d) the prescribed register of directors members and shares; and

(e) the prescribed register of loans raised and securities given by the society.

41 Returns

(1) A society shall, within fourteen days after any change in the membership of the board, transmit to the registrar information of the change.

(2) A society shall in each year, within three months after the close of its financial year or within such further time as the registrar may authorize, transmit to the registrar the following returns, that is to say—

(a) the names of the directors and the secretary for the year then current;

(b) a statement of the assets and liabilities of the society at the close of that financial year and of the accounts of the society for that financial year;

(c) a copy of any report by the auditor on such accounts; and

* * * * *

No. 6138 s. 41.

s. 41

S. 41(2)(a) amended by No. 9136 s. 4(3)(b).

S. 41(2)(d) repealed by No. 48/1992 s. 104(d).


48

(3) A society shall, when so required by notice in writing by the registrar, furnish to the registrar within the time specified in that behalf in the notice a full list in the prescribed form of all of its members as at the end of the financial year then last past or such other particulars as are specified in the notice with respect to the membership of the society.

42 Charges

(1) A society shall furnish to any person intending to become a member a list of the charges payable under the rules by a member to the society.

(2) A person who becomes a member of the society shall be liable to pay only the charges mentioned in the list and any charges which may be imposed by any subsequent registered alteration of the rules.

(3) The charges may be altered by special resolution.

43 No voting by proxy

The rules of a society shall not allow of voting by proxy.

44 Special resolution

(1) For the purposes of this Act special resolution means a resolution which is passed by a majority of not less than three-quarters of such members of the society entitled under the rules to vote as may be present in person at any general meeting of which notice specifying the intention to propose the resolution has been duly given according to the rules.

(2) At any such general meeting, unless a poll is demanded, a declaration by the chairman that the resolution has been carried shall be conclusive evidence of the fact.

No. 6138 s. 42.

s. 42

No. 6138 s. 43.

No. 6138 s. 44.


49

(3) A copy of the special resolution, signed by the chairman of the meeting and countersigned by the secretary, shall be sent to the registrar within one month after the passing of the special resolution, or within such further time as the registrar in any particular case allows and shall be registered by him and until the copy is so registered the special resolution shall not take effect:

* * * * *

Provided that a special resolution for the expulsion of any member from a society shall not be registered unless the registrar is satisfied that in all the circumstances of the case the expulsion is reasonable and that the proceedings in respect of the expulsion have been properly and fairly conducted.

(4) A certificate of registration of any special resolution or of any alteration of the rules of a society given by the registrar shall in favour of any person lending money to the society on the faith of such certificate, or in favour of any guarantor of any such loan, be conclusive evidence that such resolution was duly passed or such alteration in the rules duly made (as the case may be).

Division 5—Quarterly returns and reports

44A Quarterly returns by society

S. 44(3) amended by No. 7097 s. 5(a).

S. 44(3) Proviso repealed by No. 7097 s. 5(b).

S. 44(3) Further Proviso amended by No. 7097 s. 5(c).

Pt 2 Div. 5 (Heading and ss 44A, 44B) inserted by No. 48/1992 s. 97.


s. 44A


50

(1) The Registrar may by notice in writing given to a society require the society to submit a return in the form approved by the Registrar as to the society's compliance with Divisions 3 and 4 of this Part in respect of each quarter or such period as is specified in the notice.

(2) The society must submit the return within the period specified in the notice.


(3) The Registrar may by notice in writing require a society to provide further information in relation to any matter contained in or arising out of a quarterly or other return or any other information which the Registrar considers is relevant.

(4) A society must provide the information within the period specified by the Registrar in the notice.

(5) If a society does not comply with this section each officer of the society is guilty of an offence.

(6) The penalty for an offence under subsection (4) or (5) is a penalty of not more than 100 penalty units and a daily penalty of not more than 10 penalty units for each day during which the default continues.

44B Auditor to submit report

(1) The Registrar may by notice in writing require the auditor of a society to submit a report to the Registrar in respect of the period specified in the notice stating the auditor's opinion as to—

(a) whether or not the information provided by the society in its returns is accurate; and

S. 44A(1) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).



S. 44B inserted by No. 48/1992 s. 97.

s. 44B

S. 44B(1) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).


51

(b) whether or not the society is complying with Divisions 3 and 4 of this Part.

(2) The auditor must submit the report within 60 days of the end of the period specified in the notice.

(3) The Registrar may by notice in writing require a society or its auditor to provide further information in relation to any matter contained in or arising out of the auditor's report or any other information which the Registrar considers is relevant.

(4) A society or an auditor of a society must provide the information within the period specified by the Registrar in the notice.

(5) If a society does not comply with subsection (4), each officer of the society is guilty of an offence.

(6) The penalty for an offence under subsection (4) or (5) is a penalty of not more than 100 penalty units and a daily penalty of not more than 10 penalty units for each day during which the default continues.

Division 6—Directions of Registrar

44C Intervention by the Registrar

(1) If the Registrar is of the opinion that—



Pt 2 Div. 6 (Heading and s. 44C) inserted by No. 48/1992 s. 98, amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).

S. 44C inserted by No. 48/1992 s. 98.

s. 44C

S. 44C(1) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).


52

(a) a society has contravened this Act and, after being given written notice of the contravention by the Registrar, has allowed the contravention to continue or has again contravened this Act; or

(b) a society is trading unprofitably or has a deficiency in its net tangible asset position; or

(c) the affairs of a society are being conducted in an improper or financially unsound way—

the Registrar may, by written notice given to the society, place it under direction.

(2) The Registrar may, by written notice given to the society, revoke the notice.

(3) While a society is under direction, the Registrar may—

(a) order an audit of the affairs of the society by an auditor chosen by the Registrar at the expense of the society; or

(b) direct the society to change any practices that in the Commission's opinion are undesirable or unsound; or

(c) direct the society to cease or limit the raising or lending of funds or the exercise of other powers; or

(d) remove an officer, or all the officers, of the society from office and appoint another officer or other officers; or

(e) remove any auditor of the society from office and appoint another auditor; or

S. 44C(1)(a) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).



S. 44C(3)(a) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).

s. 44C


53

(f) give any other directions as to the way in which the affairs of the society are to be conducted or not conducted.

(4) If the society—

(a) fails, without reasonable excuse, to comply with a direction given or requirement made under this section to the extent that the society is capable of doing so; or

(b) without reasonable excuse, obstructs, hinders or resists the exercise of the Commission's powers under this section—

the society and any officer of the society who is in default each commit an offence.

(5) An officer or auditor appointed under this section holds office for such term as the Registrar directs.

Penalty applying to this section:

100 penalty units and a daily penalty of not more than 10 penalty units for each day during which the default continues or imprisonment for one year, or both.

Division 7—Supervision levy

44CA Industry Supervision Fund

The Registrar must pay all amounts received as supervision levy under section 44D into the Industry Supervision Fund established under the Financial Sector Reform (Victoria) Act 1999.


Pt 2 Div. 7 (Heading and s. 44D) inserted by No. 48/1992 s. 98.

S. 44CA inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 8).

s. 44CA


54

44D Supervision levy

(1) The Registrar may determine that an amount is to be paid to it by societies as a supervision levy.

(2) The amount of the levy may be fixed by the Registrar as—

(a) a specified amount;

(b) a specified percentage of an amount determined by the Registrar either by reference to the amounts of reserves, obligations and debts of the society or to any other factors relating to the funds or business of the society as the Registrar determines as at a date specified by the Registrar; or

(c) both a specified amount and such a specified percentage.

(3) The Registrar may require the supervision levy to be paid in one amount or by instalments which may include an amount for interest at a rate fixed by the Registrar.

(4) The supervision levy must be paid by the society within 30 days of being notified by the Registrar by notice in writing of the amount that is payable.

(5) If a society is in default in payment of the supervision levy—

S. 44D inserted by No. 48/1992 s. 98.

S. 44D(1) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).


S. 44D(2)(b) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).



s. 44D


55

(a) interest accrues on the amount outstanding from the date of default at the rate specified by the Registrar; and

(b) the Registrar may recover any amount outstanding together with interest accrued as a debt in a court of competent jurisdiction.

(6) The Registrar may on the application of a society—

(a) vary the amount of the levy payable by the society; or

(b) vary the period within which the levy is to be paid; or

(c) exempt the society from payment of the levy.

(7) The amount paid by a society as a supervision levy is to be treated as an expense in the accounts of the society.

(8) The Registrar must consult the Committee before making a decision under this section.

_______________

S. 44D(5)(a) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).

S. 44D(5)(b) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 7).



s. 44D


56

PART III—RULES, MANAGEMENT, &c.

Division 1—Rules

45 Model rules

(1) Model rules for a society shall be prescribed by regulation.

(2) A society which is to be registered under this Act, or which is registered thereunder, may adopt as its rules all or any of the model rules.

(3) Where a society is formed under this Act, in so far as any rules tendered for registration are not inconsistent with or do not exclude or modify the model rules as then in force, such model rules shall be deemed to form part of the rules of the society in the same manner and to the same extent as if they were contained in the rules tendered and registered.

(4) No alteration of the model rules shall apply to any society which is established before the regulation prescribing the alteration comes into operation, unless the society by special resolution adopts the alteration in its rules.

46 Rules of a society

(1) The rules of a society shall be divided into paragraphs numbered consecutively, and shall set forth—

(a) the name of the society;

(b) where the office of the society is to be situated;

(c) the objects of the society;

(d) the nominal value of each share in the society;

No. 6138 s. 45.

s. 45

No. 6138 s. 46.


57

(e) the maximum proportion of the shares which may be held by a member;

(f) the fixed date on which or the object or event on the attainment or occurrence of which the society is to terminate;

(g) the periodic subscriptions by which or the manner in which shares are to be paid for and the penalties for late payment;

(h) the minimum number of shares to be subscribed for by a member;

(i) the manner in which shares may be transferred;

(j) the manner in which the funds of the society are to be managed, and, in particular, the mode of drawing and signing cheques drafts bills of exchange promissory notes and other documents for and on behalf of the society;

(k) the manner in which an application for an advance is to be made, the conditions with which an applicant is to comply, the manner in which an advance is to be made and repaid, the conditions upon which a member may pay the amount due by him before the expiration of the period for which the advance is made, and the terms upon which a mortgage may be redeemed;

(l) the mode and conditions of admission to membership, and the payment to be made or the share or interest to be acquired before the exercise of the rights of membership;

(m) the rights and liabilities of members, and of the estates of deceased members and of members whose estates have been sequestrated or assigned;

s. 46


58

(n) whether or not shares may be withdrawn, and if so, upon what terms;

(o) the manner in which the value of shares is to be ascertained for repayment;

(p) the circumstances in which members may be expelled, the rights and liabilities of expelled members, and provision for the forfeiture of shares and for the cancellation of forfeited shares;

(q) the number of directors, the qualification of directors, and the manner of electing remunerating and removing directors and filling a vacancy, whether directors are to be elected annually or half-yearly, the period for which directors are to hold office, and whether directors are to retire by rotation or otherwise;

(r) the powers and duties of the board and the quorum for meetings of the board;

(s) the intervals between general meetings of the society, the manner of calling general and special meetings, the requisite notices of meetings, and the quorum for meetings, of the society;

(t) the procedure at meetings of the society, including the rights of members in voting thereat, and the manner of voting;

(u) the manner of appointing remunerating and removing officers (other than directors) of the society, the powers and duties of officers, and the security to be given by any officer having the receipt or charge of any moneys belonging to the society;

(v) whether the accounts of the society are to be audited annually or more frequently, the

s. 46


59

manner of appointing remunerating and removing auditors, the powers and duties of auditors, and in particular their powers and duties with respect to the inspection of securities belonging to the society;

(w) provision for the custody of securities belonging to the society;

(x) the charges, including any charges on admission or for management expenses or otherwise, which are to be payable by a member to the society;

(y) the manner of altering and rescinding the rules, and of making additional rules;

(z) provision for the custody and use of the seal of the society;

(aa) the manner in which the society may be wound up; and

(bb) such other matters as are prescribed by this Act or the regulations.

(2) Any person shall be entitled to obtain from a society a copy of its rules on payment of a sum not exceeding twenty-five cents ($0.25).

(3) The rules of a society shall not provide for the expulsion of any member from the society otherwise than by a special resolution.

47 Alteration of rulesS. 47(1) amended by No. 37/1999 s. 58(Sch. 2 Pt 2 item 4).s. 47

(1) The rules of a society shall not be altered unless the alteration has been approved by a special resolution or by the registrar.

(2) The society shall within one month after approval by special resolution or within such further time

No. 6138 s. 47.

S. 47(2) amended by Nos 7097 s. 6(a), 37/1999 s. 58(Sch. 2 Pt 2 item 5).


60

as the registrar in any particular case allows apply to the registrar to have the alteration registered and the application shall be made as prescribed.

* * * * *

(3) If the registrar is satisfied that the alteration is not contrary to this Act or the regulations and that the rules as altered are suitable and sufficient for the purposes of the society, the registrar shall register and certify the alteration as prescribed, and until the alteration is so registered and certified the alteration shall not take effect.

(3A) The registrar may alter the rules of a society and must register and certify the alteration.

(4) The rules of the society shall be read subject to any alteration so registered and certified.

(5) In this Act, alteration of a rule includes addition to a rule and rescission of a rule.

Division 2—Management

48 Board of directors

(1) The business and operations of a society shall be managed and controlled by a board of directors, and for that purpose the board, except as provided in this section, shall have and may exercise the powers of the society as if they had been expressly conferred on the board by a general meeting of the society.

(2) The powers of the board shall be subject to any restrictions imposed thereon by this Act or the regulations or by the rules of the society.

S. 47(2) Proviso repealed by No. 7097 s. 6(b).

S. 47(3A) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 6).

No. 6138 s. 48.

s. 48


61

(3) Every director acting in the business or operations of the society pursuant to the rules or to a resolution duly passed by the board shall be deemed to be the agent of the society for all purposes within the objects of the society.

(4) The acts of a director shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

(5) A director shall not be held liable to the society for any loss that the society may sustain, unless the loss was due to his misconduct or negligence or to his failure to comply with any of the provisions of this Act or of the regulations or of the rules of the society.

(6) The directors shall be elected at a general meeting of the society in accordance with the rules of the society:

Provided that the first directors shall be elected at the meeting for the formation of the society.

(7) The number of directors shall not be less than five and no person shall be qualified to be a director unless he is a member of the society:

Provided that where the Registrar, on application made by the society, is satisfied that the election of five directors is onerous having regard to the total number of members of the society and the volume of its business the Registrar may authorize the society in writing to carry on business with three directors and the society may act accordingly.

(8) Meetings of the board shall be held as often as may be necessary for properly conducting the business and operations of the society, but shall be held at least quarterly, and a quorum of a meeting of the board shall be as prescribed by the rules of

s. 48

S. 48(7) Proviso inserted by No. 8298 s. 4(1).

S. 48(8) amended by No. 8298 s. 4(2).


62

the society but shall not in any case be less than half the number of directors.

(9) The chairman of the board shall be elected by the board in accordance with the rules of the society, and shall hold office and retire, and may be removed from office, as prescribed by the rules of the society.

(10) The directors shall hold office and retire, and may be removed from office, as prescribed by the rules of the society.

(11) The office of a director shall be vacated in such circumstances, if any, as may be prescribed by the rules of the society, and in any of the following cases, that is to say—

(a) if he becomes bankrupt or insolvent or assigns his estate for the benefit of or compounds with his creditors;

(b) if he becomes of unsound mind or becomes a patient within the meaning of the Mental Health Act 2014;

(c) if he is convicted of any offence under this Act, or if he is convicted of any indictable offence or of any offence punishable on summary conviction for which he is sentenced to imprisonment otherwise than in default of payment of a fine;

(d) if he absents himself from three consecutive ordinary meetings of the board without its leave;

s. 48

S. 48(11)(b) substituted by No. 7332 s. 2(Sch. 1 item 16), amended by Nos 59/1986 s. 143(2), 26/2014 s. 455(Sch. item 4).


63

(e) if within two months after any money becomes due by him to the society in respect of shares in the society in relation to which he has obtained an advance he does not pay the same;

(ea) if he fails to pay any moneys due by him to the society (not being in respect of shares in relation to which he has obtained an advance from the society) within one month after notice in writing requiring the payment of such moneys has been given to him by the society;

(f) if he ceases to be a member of the society;

(g) if by notice in writing to the board he resigns his office;

(h) if he is removed from office by resolution of a general meeting of the society; or

(i) if he has, except as provided in this section, a direct or indirect pecuniary interest in any agreement with the society otherwise than as a member of, and in common with the other members of, another company or corporate body consisting of more than twenty persons.

(12) The provisions of paragraph (i) of the last preceding subsection shall not be deemed to extend to any advance to the director made by the society in accordance with a special resolution.

(13) A director shall not vote upon any question in which he has any direct or indirect pecuniary interest otherwise than as a member and in common with the other members of the society, and if he votes, his vote shall not be counted.

(14) Any vacancy occurring on the board shall be filled as prescribed by the rules of the society.

S. 48(11)(e) amended by No. 6618 s. 4(1)(a).

S. 48(11)(ea) inserted by No. 6618 s. 4(1)(b).

s. 48


64

49 Appointment of director by Treasurer in certain cases

(1) This section shall apply to and in respect of—

(a) every society for the repayment of any loan to which the Treasurer of Victoria has executed a guarantee under this Act; and

(b) every society with which the Treasurer of Victoria has entered into an agreement of indemnity under this Act.

(2) The said Treasurer may, from time to time, by notification published in the Government Gazette, appoint a person to be a director of any society to which this section applies and may by the like notification remove any such director.

(3) The provisions of this Act (other than this section) and of the rules of the society relating to the qualification disqualification remuneration removal from office and term of office of directors and to the vacation of office by directors shall not apply to or in respect of a director appointed under this section.

(4) A director appointed under this section shall hold office as an additional director and shall not be counted in ascertaining the number of directors for the election of whom provision is made in the rules of the society.

(5) Subject to subsection (3) of this section a director appointed under this section shall have all the powers, rights, authorities, functions, privileges, immunities, duties, obligations, and liabilities of a director elected in accordance with the rules of the society.

No. 6138 s. 49.

s. 49


65

(6) A director appointed under this section shall, unless he is an employee in the public service, be paid such fees as are prescribed by the regulations.

49A Appointment of administrator

(1) The registrar, with the approval of the Minister, may appoint an administrator to conduct the affairs of a society as provided in this section.

(2) The registrar must not appoint an administrator unless—

(a) the registrar has certified that any one or more of the events specified in subsection (17) has occurred; or

(b) the registrar is satisfied that it is in the interests of the public or of members or creditors of the society that the affairs of the society should be conducted by an administrator.

(3) The registrar must not certify under subsection (2) unless the ground or matter to be certified has been proved to his or her satisfaction.

(4) Upon the appointment of an administrator of a society—

(a) the directors of the society cease to hold office; and

(b) all contracts of employment with, or for the provision of secretarial or administrative services to, the society are voidable by the administrator.

(5) An administrator of a society—

(a) has the powers, authorities, duties and functions of the board of directors of the society including, without limiting the generality of the foregoing, the board of directors' powers of delegation; and

S. 49(6) amended by No. 46/1998s. 7(Sch. 1).S. 49A inserted by No. 36/1990 s. 17.

s. 49A


66

(b) must observe any relevant law, regulation or industrial award in respect of the giving of notice and the provision of termination or other entitlements to employees.

(6) Except as provided by subsection (10), no appointment or election of a director of the society may be made while the administrator is in office.

(7) An administrator holds office until his or her appointment is revoked.

(8) Upon revocation of his or her appointment, an administrator must prepare and submit forthwith a report to the registrar showing how the administration was conducted and, for that purpose, an administrator has access to the records and documents of the society.

(9) Upon completion of the report and accounting fully in respect of the administration to the satisfaction of the registrar, the administrator is released from any further liability to account in respect of the administration, other than on account of fraud or dishonesty.

(10) Before revoking the appointment of an administrator of a society, the registrar must—

(a) appoint another administrator; or

(b) ensure that directors of the society have been elected in accordance with the rules, at a meeting convened by the administrator in accordance with those rules; or

(c) appoint directors of the society; or

(d) appoint a liquidator of the society.

(11) Directors elected under subsection (10)(b) or appointed under subsection (10)(c)—

s. 49A


67

(a) take office upon revocation of the appointment of the administrator; and

(b) in the case of appointed directors, hold office until the annual general meeting of the society that next succeeds revocation of that appointment.

(12) The expenses of and incidental to the conduct of the affairs of a society by an administrator are payable from the funds of the society.

(13) The remuneration of an administrator who is not a servant of the Crown is an expense referred to in subsection (12) and is to be fixed by the registrar.

(14) If an administrator appointed under this section is a servant of the Crown, the reimbursement of the Crown in an amount certified by the registrar in respect of the remuneration of its servant is an expense referred to in subsection (12) and is recoverable as a debt due to the Crown.

(15) Without prejudice to his or her ability to account under subsection (9), an administrator of a society is not liable for any loss sustained by the society or by any other person during his or her term of office in respect of any act or omission by him or her in the management of the society or otherwise in relation to the society unless the loss was due to his or her—

(a) misconduct or gross negligence; or

(b) his or her failure to comply with this Act or the rules to the extent the rules are not inconsistent with this Act.

(16) The registrar is not liable for any loss sustained by a society or by any other person during the term of office of an administrator, in respect of any act or omission of the administrator in the management of the society or otherwise in relation to his or her

s. 49A


68

conduct as administrator, whether or not the administrator is so liable.

(17) The events referred to in subsection (2)(a) are as follows:

(a) That the number of members of a society is reduced to less than 3;

(b) That the society has not commenced business within a year of registration or has suspended business for a period of more than six months;

(c) That the period, if any, fixed for the duration of the society by its rules has expired;

(d) That an event to be specified in the certificate has occurred upon the occurrence of which the regulations or the rules provide that the society is to be wound up;

(e) That the society has, after notice by the registrar of any breach of, or non-compliance with, this Act or the rules failed, within the time specified in the notice, to remedy the breach or has committed any breach of a kind specified in the notice;

(f) That there are, and have been for a period of one month immediately before the date of the certificate, insufficient directors of the society to constitute a quorum as provided by the rules.

50 Annual meeting

(1) The annual general meeting of the society shall be held within three months after the close of the society's financial year, or within such further time as may be allowed by the registrar or prescribed by the regulations.

No. 6138 s. 50.

s. 50


69

(2) Any other meetings of the society shall be held or may be called as prescribed by the rules of the society.

(3) At any meeting of the society no item of business shall be transacted unless a quorum of members entitled under the rules to vote is present during the time when the meeting is considering that item, and the quorum shall be as prescribed by the rules of the society.

51 Voting by members

(1) Except as is otherwise provided in this Act or by the rules of the society, every question for decision by a meeting of the society shall be determined by a majority of the members present in person thereat who are entitled under the rules to vote, and unless a poll is demanded by at least five such members the question shall be determined on a show of hands.

(2) Every member of a society entitled under the rules to vote shall, irrespective of the number of shares held by him, have one vote.

52 Minutes

Minutes of every meeting of the board, and of every meeting of the society, shall be kept and confirmed as prescribed.

53 Officers

(1) A director or other officer shall not borrow from the society, and the society shall not make any advance to a director or other officer, except by special resolution of the society, and if any advance is made in contravention of this subsection the members of the board who authorized the advance shall be jointly and severally liable for any loss on the advance occasioned to the society.

No. 6138 s. 51.

s. 51

No. 6138 s. 52.

No. 6138 s. 53.


70

(2) A director or other officer may be paid such fees as are fixed by a general meeting of the society but not exceeding in any case such maximum amounts as are prescribed by the regulations.

(3) Every officer having the receipt or charge of any money of the society shall give security as prescribed by the regulations for rendering a just and true account of all money received and paid by him for the society, and for payment of all money due from him to the society.

54 Certain dealings by directors prohibited

A director or other officer of a society shall not, except where specifically authorized by a special resolution of the society—

(a) sell any land to or act as agent for the sale of any land to a member of the society who proposes to pay for the same, in whole or in part, out of an advance made by the society;

(b) undertake the erection or act as agent in respect of the erection of any dwelling-house for a member of the society who proposes to pay for the same, in whole or in part, out of an advance made by the society; or

(c) accept as payment in whole or in part of any moneys due to him by a member of the society the whole or part of any advance made by the society to such member.

55 Dismissal of director after inquiry in certain cases

(1) This section shall apply to and in respect of—

(a) every society for the repayment of any loan to which the Treasurer of Victoria has executed a guarantee under this Act;

(b) every society with which the Treasurer of Victoria has entered into an agreement of indemnity under this Act; and

No. 6138 s. 54.

s. 54

No. 6138 s. 55.


71

(c) every society which has obtained a loan pursuant to any agreement made (whether before or after the commencement of this Act) between the Commonwealth and the State of Victoria.

(2) The Minister may appoint a person to hold an inquiry and to report to him with respect to—

(a) any matter relating to the carrying out of the provisions of this Act conferring powers or imposing duties on a society to which this section applies; or

(b) any act or omission of any director or officer of a society to which this section applies, where such act or omission relates to the carrying out of the provisions of this Act conferring powers or imposing duties on the society or to the office or position held by the director or officer or to the powers or duties of that office or position.

(3) For the purposes of any such inquiry the person holding the inquiry shall have the powers and authorities conferred on a sole commissioner by sections seventeen to twenty of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal, and the provisions of the said Act and of any other Act or law relating to inquiries under the said sections shall, so far as applicable and with such adaptations as are necessary, extend and apply to and with respect to inquiries under this section.

(4) The Minister may, after consideration of the report of the person holding an inquiry under this

S. 55(1)(c) inserted by No. 6618 s. 5.

S. 55(2) amended by No. 8339 s. 2(1)(Sch. 2 item 2(iii)).

s. 55

S. 55(3) amended by Nos 69/2009 s. 54(Sch. Pt 2 item 12), 67/2014 s. 147(Sch. 2 item 10.1).

S. 55(4) amended by No. 8339 s. 2(1)(Sch. 2 item 2(iv)).


72

section, direct that the office or position in a society of the director or officer to whom the report relates shall be vacated, and that such director shall not be eligible to hold office as a director of that society, or (as the case may require) that such officer shall not be eligible for appointment or employment as an officer of that society.

(5) The office or position shall be deemed to have become vacant as from the date upon which notices of the direction of the Minister, addressed to the director or officer to whom the same relate and to the society of which he is a director or an officer, and signed by or on behalf of the Minister, are delivered at or posted to the registered office of the society.

56 Audit

(1) The accounts of a society shall be audited annually or more frequently as may be prescribed by the rules of the society.

(2) The auditor must be a person registered as an auditor under Part 9.2 of the Corporations Act and approved by the registrar, but an officer of the society is not capable of being appointed its auditor.

(3) The auditor shall have a right of access to the books accounts vouchers and documents of the society, and may require from the directors and other officers such information and explanation as may be necessary for the performance of his duties as auditor.

(4) In making his report to the members of the society and in signing any statement of assets and liabilities or of accounts to be presented to the members or transmitted to the registrar, the auditor shall state—

S. 55(5) amended by No. 8339 s. 2(1)(Sch. 2 item 2(v)).

No. 6138 s. 56.

s. 56

S. 56(2) substituted by No. 44/2001 s. 3(Sch. item 19.4).


73

(a) whether he has obtained the information and explanation required by him;

(b) whether in his opinion the statements are properly drawn up so as to exhibit a true and correct view of the financial position of the society according to the information at his disposal and explanation given to him and as shown by the books of the society; and

(c) whether the rules relating to the administration of the funds of the society have been observed.

(5) A copy of the balance-sheet and final accounts for the period covered by the audit, both duly audited, together with a copy of the auditor's report to the members of the society, shall be transmitted to each member with the notice of the annual general meeting, or, in the alternative, if the rules of the society so provide, the notice of the annual general meeting may include a notice that the balance-sheet and final accounts as aforesaid and the auditor's report may be inspected by members at the office of the society for such period before the meeting as may be prescribed by the rules.

(6) Any member may inspect his own account in the books of the society at any reasonable time on payment of a fee not exceeding Twenty cents ($0.20).

(7) The Treasurer may, at any time, require the Auditor-General to audit the accounts of a society and, if so—

s. 56

S. 56(7) substituted by No. 93/1997s. 28(Sch. item 8), amended by No. 53/1999 s. 26(Sch. item 7(a)).


74

(a) the Auditor-General has in respect of the audit all the powers conferred on the Auditor-General by any law relating to the audit of the Public Account; and

(b) the Auditor-General must submit a report of the audit to the Treasurer.

57 Financial year

(1) The financial year of the society shall end at the conclusion of the last pay day of the society before the thirtieth day of June, or with the written approval of the registrar at any other time between the thirty-first day of March and the thirtieth day of June.

(2) The first financial year of the society shall be deemed to be from the date of registration of the society to the conclusion of the said pay day, or such other time as is approved as aforesaid, in the following year.

Division 3—Valuations

58 Valuations of property to be made by sworn valuators

(1) No advance to a member of a society shall be made upon the security of any freehold property unless a valuation of that property in accordance with this Division of this Part is first obtained by the board.

(2) Every valuation of freehold property for the purposes of any advance to be made by a society upon the security of that property shall be made by a valuator.

(3) Every valuator's report to the board on any property shall be verified in the prescribed manner and shall set forth full particulars with respect to the property and the manner in which the

S. 56(7)(a) amended by No. 53/1999 s. 26(Sch. item 7(b)).

No. 6138 s. 57.

s. 57

No. 6138 s. 58.

S. 58(2) substituted by No. 7575 s. 4, amended by No. 8405 s. 7(b).


75

valuation is arrived at and such further particulars as are prescribed.

(4) If the board is not satisfied with the accuracy of any valuation or of any of the particulars set forth in the valuators report, the board shall cause a further valuation or (where the case so requires) further valuations to be made and, where two or more valuations have been so made, the lower or lowest of such valuations shall be deemed the valuation for the purposes of the advance to be made by the society.

(5) A valuator must not value any property offered as a security for an advance in which any of the following persons is directly or indirectly interested—

(a) the valuator;

(b) the valuator's spouse or domestic partner;

(c) a relative of the valuator or of the valuator's spouse or domestic partner.

(6) Any valuator who knowingly and wilfully—

(a) contravenes the provisions of the last preceding subsection; or

(b) makes any false and fraudulent valuation—

shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence against this Act and liable to a penalty of not more than $400.

* * * * *

S. 58(5) substituted by No. 27/2001 s. 8(Sch. 6 item 1.4).

s. 58

S. 58(7) inserted by No. 9108 s. 3, amended by Nos 36/1990 s. 18, 48/1992 s. 104(e), repealed by No. 91/1994 s. 36(2)(b).


76

Division 4—Winding up, &c.

59 Winding up voluntarily or by courtS. 59(1) amended by No. 6505 s. 2.s. 59

(1) A society may be wound up voluntarily or by the court or upon a certificate of the registrar.

(2) The winding up of a co-operative housing society voluntarily or on the certificate of the registrar under subsection (4) is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.5, 5.6, 5.7B, 5.8, 5.8A and 5.9 of the Corporations Act, subject to the following modifications—

(a) those provisions are to be read as if a co-operative housing society were a company;

(b) a reference in those provisions to ASIC is to be read as a reference to the registrar;

(c) a reference in those provisions to a special resolution is to be read as a reference to a special resolution under this Act;

(d) a reference in those provisions to a registered liquidator is to be read as a reference to a person approved by the registrar under subsection (2AA);

(e) in the case of a winding up upon the certificate of the registrar—

No. 6138 s. 59.

S. 59(2) amended by Nos 6455 s. 2(Sch. 1 Pt 2 item 6(1)(a)), 6839 s. 4(Sch. 1 Pt 2 item 5(a)), 7388 s. 2(a), 9699 s. 23, substituted by No. 44/2001 s. 3(Sch. item 19.5).


77

(i) a reference in those provisions to the liquidator is to be read as a reference to the liquidator appointed under subsection (6);

(ii) any vacancy occurring in the office of liquidator is to be filled by appointment by the registrar;

(iii) the winding up is deemed to commence at the date of the certificate of the registrar;

(f) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.

Note

Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.

(2AA) The registrar may approve a person to be a liquidator of co-operative housing societies, having regard to the person's experience and capacity.

(2A) In the case of a voluntary winding up of a society a liquidator shall be entitled to receive remuneration not exceeding the amount fixed by the registrar.

(3) Where a society is being wound up voluntarily and a vacancy occurs in the office of liquidator which in the opinion of the registrar is unlikely to be filled in the manner provided in the

S. 59(2AA) inserted by No. 44/2001 s. 3(Sch. item 19.5).

S. 59(2A) inserted by No. 7388 s. 2(b), amended by Nos 10254 s. 43(d), 48/1992 s. 104(f).

s. 59

S. 59(3) amended by Nos 6455 s. 2(Sch. 1 Pt 3(e)), 6839 s. 4(Sch. 1 Pt 3(e)), 9699 s. 23, 44/2001 s. 3(Sch. item 19.6).


78

Corporations Act as applying under this section the registrar may appoint a person to be liquidator.

(4) In the case of a winding up upon a certificate of the registrar the society may be wound up if the registrar certifies that any of the following events has occurred, that is to say:

(a) that the number of members is reduced to less than twenty and the registrar and the Minister are satisfied that it is desirable and expedient that the society be wound up;

(ab) that the society has no interest under any mortgage of freehold land;

(b) that the society has not commenced business within a year of registration or has suspended business for a period of more than six months;

(c) that the specified date on which the society is to terminate has arrived;

(d) that the specified object or specified event upon the attainment or occurrence of which the society is to terminate has been attained or has occurred (as the case may be);

(e) that the registration of the society has been obtained by mistake or fraud;

(f) that the society exists for an illegal purpose; or

(g) that the society has wilfully and after notice from the registrar violated the provisions of this Act or of the regulations or of the rules of the society.

(5) The registrar shall not so certify unless—

S. 59(4)(a) amended by No. 8339 s. 2(1)(Sch. 2 item 2(vi)).

S. 59(4)(ab) amended by No. 37/1999 s. 58(Sch. 2 Pt 2 item 7).

s. 59


79

(a) the event has been proved to his satisfaction; and

(b) in the case of any of the matters referred to in paragraphs (e) (f) and (g) of the last preceding subsection, the Governor in Council consents to the issue of the certificate.

(6) Where the registrar so certifies he may appoint a person to be the liquidator of the society and such liquidator shall give such security and be entitled to receive such fees as are prescribed.

(7) The winding up of a co-operative housing society by the court is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.4, 5.4A, 5.4B, 5.6, 5.7B, 5.8, 5.8A and 5.9 of the Corporations Act, subject to the following modifications—



(c) a reference in those provisions to a registered liquidator is to be read as a reference to a person approved by the registrar under subsection (2AA);

(d) a reference in those provisions to the Court is to be read as a reference to the Supreme Court;

(e) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.

S. 59(7) amended by Nos 6455 s. 2(Sch. 1 Pt 2 item 6(1)(b)), 6839 s. 4(Sch. 1 Pt 2 item 5(b)), 9699 s. 23, substituted by No. 44/2001 s. 3(Sch. item 19.7).

s. 59


80

Note

See note under subsection (2).

(8) A co-operative housing society is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5A.1 (Deregistration) of the Corporations Act, subject to the following modifications—



(c) a reference in those provisions to a director of a company is to be read as a reference to an officer of a co-operative housing society;

(d) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.

Note

See note under subsection (2).

(9) In this section the court means the Supreme Court.

60 Liability of members and past members in winding up

S. 59(8) amended by Nos 6455 s. 2(Sch. 1 Pt 2 item 6(1)(d)), 6839 s. 4(Sch. 1 Pt 2 item 5(c)), 9699 s. 23, 37/1999 s. 58(Sch. 2 Pt 2 item 8), substituted by No. 44/2001 s. 3(Sch. item 19.8).

S. 59(9) amended by No. 110/1986 s. 140(2).

No. 6138 s. 60.


81

(1) Where a society is being wound up, every present and past member of the society shall be liable to contribute to the assets of the society up to the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member together with any charges payable by him to the society, for payment of the debts and liabilities of the society and the costs charges and expenses of the winding up and for payment of such sums as may be required for the adjustment of the rights of the contributories among themselves, with the qualifications set out in this section:

Provided that in the winding up of any society a member shall not be liable to pay the amount unpaid on the shares in respect of which he is liable except at the time or times and subject to the conditions expressed in the rules of the society relating to the payment of share capital by instalments and, where an advance has been made, in the mortgage securing the advance.

(2) A past member shall not be liable to contribute to the assets of the society if he has ceased to be a member for one year or upwards before the commencement of the winding up.

(2A) A past member is not liable to contribute to the assets of the society in respect of any debt or liability to the society under a mortgage given by the member to the society that has been assigned or transferred by the society.

(3) A past member shall not be liable in respect of any debt or liability of the society contracted after the time at which he ceased to be a member.

(4) A past member shall not be liable to contribute unless it appears that the existing members are unable to make the contributions required to be made by them in order to satisfy all just demands upon the society.

s. 60

S. 60(2A) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 9).

s. 60


82

* * * * *

_______________

S. 61 repealed by No. 37/1999 s. 58(Sch. 2 Pt 2 item 10).


83

PART IV—ADMINISTRATION

Division 1—Registry

62 Employment of Registrar

There is to be employed under Part 3 of the Public Administration Act 2004 a Registrar of Co-operative Housing Societies for the purposes of this Act.

62A Registrar's functions

(1) Subject to this Act, the Registrar is responsible for the general administration of this Act.

(2) The Registrar has the functions that are conferred on the Registrar by or under this Act.

(3) The Registrar must have a seal of office.

(4) The Registrar may enter into an arrangement or agreement with the Australian Prudential Regulation Authority or any other person or body.

62B Delegation by Registrar

The Registrar may by instrument delegate to any employee of the public service or, with the approval of the Minister, any other person any of the Registrar's functions or powers under this Act, other than this power of delegation.

S. 62 amended by Nos 6821 s. 8(a)(b), 10087 s. 3(1)(Sch. 1 item 18), repealed by No. 48/1992 s. 99(a), new s. 62 inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 9), amended by No. 108/2004 s. 117(1) (Sch. 3 item 42).

s. 62

S. 62A inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 9).

S. 62B inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 9).


84

63 Documents to be kept in office of registrar

All certificates rules and documents required to be registered under this Act or to be transmitted to the registrar for record shall be kept in the office of the registrar.

64 Payments to be made for giving of information

The Minister may, on the recommendation of the Commission under this Act, authorize the payment of amounts for the purpose of meeting expenses relating to the dissemination of information concerning the formation registration and operation of co-operative housing societies.

65 Power to registrar to require evidence

(1) On any application for registration of a society or of any rule or document under this Act the registrar may require from the applicant such information and evidence as is reasonable in order to show that the application should be granted.

(2) The registrar may require from any society such information and evidence as is reasonable in order to show that the society is bona fide carrying on business in accordance with the provisions of this Act.

(3) The registrar may require from a society such evidence as he thinks proper of all matters required to be done and of the particulars in any document required to be transmitted to him under this Act.

66 Inspection of books

(1) The registrar may inspect, or may authorize in writing any officer employed in or in connexion with the office of the registrar or any employee of the public service or any accountant or actuary to inspect, any minutes registers books and documents of any society.

No. 6138 s. 63.

s. 63

No. 6138 s. 64.S. 64 amended by Nos 8339 s. 2(1)(Sch. 2 item 2(vii)), 10254 s. 43(d), 48/1992 s. 102(a), 43/1995 s. 15.No. 6138 s. 65.

No. 6138 s. 66.

S. 66(1) amended by No. 46/1998s. 7(Sch. 1).


85

(2) The registrar or any person so authorized may require any director or officer of the society to produce to him all the minutes registers books and documents of the society, and any person so required who fails without reasonable excuse to comply with the requirement shall be guilty of an offence against this Act and liable to a penalty of not more than $200.

(3) Any authorised deposit-taking institution in which a society keeps an account shall, when so required in writing by the registrar, furnish to the registrar a statement of such account and any other particulars required by the registrar to be so furnished.

(4) No authorised deposit-taking institution shall incur any liability, whether in respect of any breach of trust or otherwise, by reason only of the furnishing of any statement or particulars pursuant to this section.

67 Special general meeting or inquiry

(1) The registrar shall on the application of a majority of the board or of not less than one-third of the members of any society—

(a) call a special general meeting of the society; or

(b) hold an inquiry into the affairs of the society.

(2) The application shall be supported by such evidence as the registrar directs for the purpose of showing that the applicants have good reason for requiring the meeting or inquiry, and that the application is made without malicious motive.

(3) Such notice of the application shall be given to the society as the registrar directs.

(4) The applicants shall give such security for the expenses of the meeting or inquiry as the registrar



No. 6138 s. 67.

s. 67


86

directs.

(5) The registrar may direct at what time and place any such meeting is to be held and what matters are to be discussed and determined at the meeting, and shall give such notice to members of the holding of such meeting as he deems fit notwithstanding any provision in the rules of the society as to the giving of such notice.

(6) The meeting shall have all the powers of a meeting called in accordance with the rules of the society, and shall have power to appoint its own chairman, notwithstanding any rule of the society to the contrary.

(7) The registrar may appoint an inspector for the purpose of any such inquiry.

(8) All expenses of and incidental to the meeting or inquiry shall be defrayed by the applicants or out of the funds of the society or by any officer or member or former officer or member of the society as the registrar directs, or in any two or more of such ways in such proportions as the registrar directs, and may be recovered in the Magistrates' Court as a civil debt recoverable summarily or in any other competent court.

68 Inquiry by registrar or inspector

(1) The registrar may without any application hold an inquiry or appoint an inspector to hold an inquiry into the affairs of any society.

(2) Upon the completion of any inquiry under this section or the last preceding section the registrar may if he thinks fit call a special general meeting of the society.

(3) The provisions of subsections (5), (6), and (8) of the last preceding section shall so far as applicable apply to and with respect to any such meeting.

S. 67(8) amended by Nos 16/1986 s. 30, 57/1989 s. 3(Sch. item 33.2).

No. 6138 s. 68.

s. 68


87

69 Powers of registrar or inspector upon inquiry

For the purposes of any inquiry into the affairs of a society the registrar or any inspector appointed for the purpose shall have the powers and authorities conferred by sections fourteen to sixteen of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal, upon a board appointed by the Governor in Council and upon the chairman of such a board, and the provisions of the said Act or any other Act or law relating to an inquiry under the said sections shall, so far as applicable and with such adaptations as are necessary, extend and apply to and with respect to any such inquiry into the affairs of a society.

70 Public office of Registrar and inspection of documents

(1) The Registrar must maintain a public office.

(2) Any person may on payment of the prescribed fee—

(a) inspect at the office of the Registrar the certificate of registration and rules of any society and information and returns submitted under section 41(1) or (2);

(b) obtain from the Registrar a certified copy of the certificate of registration of any society, a certified copy of the rules, or of any part of the rules, of any society or a copy of any information or return submitted under section 41(1) or (2) or of any part of such information or return;

(c) with the permission of the Registrar, inspect at the office of the Registrar and obtain from

No. 6138 s. 69.S. 69 amended by Nos 69/2009 s. 54(Sch. Pt 2 item 12), 67/2014 s. 147(Sch. 2 item 10.2).

s. 69

S. 70 repealed by No. 48/1992 s. 104(g), new s. 70 inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 10).


88

the Registrar a certified copy of the whole or any part of any other registered document.

70A Power of Registrar to reject documents etc.

(1) If the Registrar is of the opinion that a document submitted to the Registrar—

(a) contains matter contrary to law; or

(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or

(c) because of an omission or misdescription, has not been duly completed; or

(d) does not comply with the requirements of this Act; or

(e) contains an error, alteration or erasure—

the Registrar may refuse to register, or may reject, the document and may request—

(f) that the document be appropriately amended or completed and resubmitted; or

(g) that a fresh document be submitted in its place; or

(h) if the document has not been duly completed, that a supplementary document be submitted.

(2) The Registrar may require a person who submits a document to the Registrar to produce another document, or to give any information, that the Registrar considers necessary in order to form an opinion whether the Registrar should refuse to register or should reject the document.

* * * * *

S. 70A inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 10).

s. 70A

S. 71 amended by No. 8339 s. 2(1)(Sch. 2 item 2(viii)), repealed by No. 48/1992 s. 99(b).


89

Division 1A—Examiners

71A Appointment of examiners

(1) The Registrar may appoint an examiner to investigate any of the following and report to the Registrar—

(a) any matter relating to a report by an auditor;

(b) any matter relating to the compliance of a society with this Act.

(2) An examiner has the powers specified in section 71B.

(3) The Registrar has the same powers as an examiner.

71B Powers of examiners

(1) An examiner in relation to an investigation being carried out by the examiner—

(a) may administer an oath or affirmation;

(b) may require by notice in writing a person to attend at a time and place specified in the notice;

(c) may require a person attending at a specified time and place to answer any question put by the examiner;

Pt 4 Div. 1A (Heading and ss 71A–71C) inserted by No. 48/1992 s. 100.


s. 71A



S. 71B inserted by No. 48/1992 s. 100.


90

(d) may require a person attending at a specified time and place to produce for inspection any documents of a society which the examiner believes on reasonable grounds are in the person's custody or control and relate to the investigation;

(e) may exercise any power conferred on the Registrar under section 66 or an investigator under section 69.

(2) A person is not excused from answering a question asked by an examiner on the ground that the answer might tend to incriminate the person.

(3) If before answering a question, a person claims that the answer might tend to incriminate him or her, the question and the answer are not admissible in evidence against the person on any criminal proceedings other than proceedings under section 71C or in relation to a charge of perjury in respect of the answer.

(4) An examiner may direct that a record of an examination must be recorded or transcribed in any manner that is authorised by Part VI of the Evidence (Miscellaneous Provisions) Act 1958.

(5) Except as otherwise provided in subsection (5), a record of an examination may be used in any legal proceedings against the person who is examined.

(6) This section does not affect or limit the admissibility of other written or oral evidence.

(7) A person is entitled, on written request, to a free copy of the record of his or her examination.

(8) If a report is made, any record of examination that relates to that report must be given with it.

(9) The Registrar may give a copy of the record of examination to an Australian legal practitioner

S. 71B(1)(e) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 13).

S. 71B(4) amended by No. 69/2009 s. 54(Sch. Pt 2 item 12).

s. 71B

S. 71B(9) amended by Nos 37/1999 s. 58(Sch. 2 Pt 1 item 13), 18/2005 s. 18(Sch. 1 item 18(a)).


91

(within the meaning of the Legal Profession Act 2004) who the Registrar is satisfied is acting for a person who is conducting, or is in good faith contemplating, legal proceedings in respect of any affairs of a society that are being investigated by an examiner.

(10) An Australian legal practitioner may only use a copy of the record of examination in connection with the institution or preparation of legal proceedings, and in the course of those proceedings, and must not publish or communicate to any person for any other purpose the record or any part of the record.

Penalty:10 penalty units or imprisonment for 3 months.

71C Offences in relation to examiners

A person must not—

(a) without reasonable excuse, refuse or fail to comply with a requirement made under section 71B; or

(b) obstruct or hinder an examiner acting in the course of his or her powers; or

(c) assault, intimidate or threaten or attempt to assault, intimidate or threaten an examiner acting in the course of his or her powers.

Penalty:200 penalty units or imprisonment for 5 years or both.

Division 2—Co-operative Housing Societies Advisory Committee

S. 71B(10) amended by No. 18/2005 s. 18(Sch. 1 item 18(b)).

S. 71C inserted by No. 48/1992 s. 100.

s. 71C

Pt 4 Div. 2 (Heading and s. 72) amended by Nos 6821 s. 9, 7983 s. 3(a)(b) (i)(ii), 8339 s. 2(1)(Sch. 2 item 2(ix)(x)), 8462 s. 2(1), 10254 s. 43 (a)–(c)(e)(f), 36/1990 s. 19(b)(c), substituted as Pt 4 Div. 2 (Heading and ss 72, 72A) by No. 48/1992 s. 101.


92

72 The Committee

(1) There is established by this Act a Committee by the name of the Co-operative Housing Societies Advisory Committee.

(2) The Committee is to consist of 8 members appointed by the Minister of whom—

(a) 4 must be persons who are representatives of the co-operative housing society industry; and

(b) 4 must be persons whom the Minister considers have skills, experience or knowledge of co-operative housing societies necessary to enable the Committee to perform its functions.

(3) The Minister must appoint the members specified under subsection (2)(a) from a panel of names of persons submitted at the invitation of the Minister by a body or organisation which the Minister considers represents the co-operative housing society industry.

(4) A submission under subsection (3) must—

(a) be made in writing so as to reach the Minister on or before the date determined by

No. 6138 s. 72.S. 72 substituted by No. 48/1992 s. 101.

s. 72


93

the Minister as the last date for the submission; and

(b) contain at least 6 names.

(5) The failure to make a submission does not preclude the Minister from making an appointment under subsection (2).

(6) The Minister must appoint a member to be the Chairperson of the Committee who must preside at any meeting at which he or she is present.

(7) If the Chairperson is not present at the time fixed for the commencement of a meeting of the Committee, the members present at the meeting must elect a member to preside.

(8) The Minister may appoint a deputy member to attend a meeting of the Committee at which a member is unable to be present.

(9) The members and the deputy members of the Committee hold office at any time for the period that the Minister decides, and may be removed from office at any time by the Minister.

(10) Meetings of the Committee may be convened by the Chairperson or by any 2 members.

(11) A quorum of the Committee is 4.

(12) If votes are equal, the person who is presiding at the meeting has a casting vote.

(13) A member or deputy other than a member or deputy who is an officer or employee who holds a full-time government office or a full-time office with a statutory corporation may be paid—

s. 72


94

(a) remuneration as is specified in the instrument of appointment or as may be fixed from time to time by the Governor in Council; and

(b) travelling and other allowances and expenses as may be fixed from time to time by the Governor in Council.

(14) A representative of the Commission is entitled to attend (but not vote) at a meeting of the Committee.

72A Functions of Committee

The Committee—

(a) may submit recommendations to the Minister and the Registrar for the more effective operation of societies and in respect of proposed regulations; and

(b) may report on any other matters that relate to societies that are referred to it by the Minister; and

(c) may tender advice to the Registrar on any matters that are referred to it by the Registrar.

Division 3—General

New s. 72A inserted by No. 48/1992 s. 101.

s. 72A

S. 72A(a) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 14).

S. 72A(c) amended by No. 37/1999 s. 58(Sch. 2 Pt 1 item 14).

Pt 4 Div. 3 (Heading and s. 72B) inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 15).


95

72B Secrecy

(1) A person to whom this section applies must not, except to the extent necessary to carry out that person's duties, give to any other person any information of which that person has knowledge through the carrying out of those duties or make use of that information except in the course of carrying out those duties.

Penalty:$2000 or imprisonment for one year or both.

(2) Nothing in subsection (1) precludes a person to whom this section applies from—

(a) producing a document to a court in the course of criminal proceedings or in the course of any proceedings under this Act; or

(b) divulging or communicating to a court in the course of any proceedings referred to in paragraph (a) any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or the exercise of a power referred to in subsection (1); or

(c) producing a document or divulging or communicating information to—

(i) the Minister or a nominee of the Minister; or

(ii) the Registrar; or

(iii) a person appointed or employed by the Registrar for the purpose of carrying out the duties of the Registrar under this Act; or

(iv) the Director of Consumer Affairs Victoria; or

New s. 72B inserted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 15).

s. 72B

S. 72B(2)(c)(iv) substituted by No. 35/2000 s. 44, amended by No. 30/2003 s. 83.


96

(v) the Commissioner of Corporate Affairs; or

(vi) the Commissioner, Second Commissioner or a Deputy Commissioner under any law of the Commonwealth relating to taxation or to any person authorised by the Commissioner or Second Commissioner or a Deputy Commissioner; or

(vii) the Commissioner of State Revenue; or

(viii) the Commissioner or any other officer of any State or Territory of the Commonwealth administering any law of that State or Territory relating to taxation or to any person authorised by the Commissioner or any other officer; or

(ix) the Treasurer or a nominee of the Treasurer; or

* * * * *

(xi) a police officer engaged in his or her official duties; or

(xii) the Australian Securities and Investments Commission; or

(xiii) the Australian Prudential Regulation Authority; or

s. 72B

S. 72B(2)(c)(x) repealed by No. 67/2014 s. 147(Sch. 2 item 10.3).

S. 72B(2)(c)(xi) amended by No. 37/2014 s. 10(Sch. item 20.2).


97

(d) producing a document or divulging or communicating information that is required or permitted by any Act to be produced, divulged or communicated, as the case may be, if, where the document or information relates to the personal affairs of another person, that other person has given consent in writing; or

(e) producing to the committee established under section 72 such statistical or general information as the person considers appropriate.

(3) This section applies to—

(a) the Registrar;

(b) a member of the staff of the Registrar;

(c) APRA;

(d) a person appointed or employed by the Registrar for the purpose of carrying out the duties of the Registrar under this Act;

(e) the committee established under section 72;

(f) a member of the committee established under section 72.

_______________

* * * * *

s. 72B

Pt 4A (Heading and ss 72A, 72B) inserted by No. 8206 s. 14(1), repealed by No. 10020 s. 3(1).

s. 72B


98

PART V—GOVERNMENT GUARANTEES AND INDEMNITIES

Division 1—Guarantees

73 Treasurer's guaranteesS. 73(1) amended by No. 119/1986 s. 142(Sch. 2 item 3) (as amended by No. 36/1990 s. 23(c)), substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 16), amended by No. 11/2001 s. 3(Sch. item 15.4).s. 73

(1) The Treasurer of Victoria may, with the approval of the Governor in Council, execute a guarantee in favour of any authorised deposit-taking institution or of any other person or body corporate or unincorporate (including any trustee), approved by the Treasurer of Victoria, (in this Division referred to as an approved body), guaranteeing the repayment of any loan to be made by the authorised deposit-taking institution or approved body to any society registered under this Act.

(2) No guarantee shall be executed pursuant to this Division of this Part guaranteeing the repayment of any loan to be made to a society unless the society has first entered into an agreement with the Treasurer of Victoria with respect to the conduct of the affairs of the society while the guarantee is in force and containing such provisions and conditions as are prescribed or as the Treasurer of Victoria thinks fit, and in particular, a condition that while the guarantee is in force—

(a) the society will not make to any member any advance the amount of which, reduced by the value of the share capital of that member, exceeds eighty per centum of the value of the land and the dwelling-house erected or to be erected thereon which comprise the security

No. 6138 s. 73.


99

for such advance unless the Treasurer of Victoria has entered into an agreement of indemnity under Division two of this Part in respect of that advance to that member; and

(b) the society will not make to any member, in respect of whom such an agreement of indemnity has been entered into, any advance the amount of which, reduced by the value of the share capital of the member, exceeds ninety-five per centum of the value of the land and the dwelling-house erected or to be erected thereon which comprise the security for such advance.

(3) For the purposes of the last preceding subsection the value of the share capital of a member of any society shall be ascertained in such manner as the Victorian Co-operative Housing Council directs.

74 Provisions relating to guarantees

The following provisions shall apply to and in respect of any guarantee authorized to be executed by this Division of this Part—

(a) the guarantee shall be in such form and subject to such terms and conditions as are prescribed or as the Treasurer of Victoria determines;

(b) the guarantee may include the interest charges and expenses chargeable by the authorised deposit-taking institution or approved body (as the case may be) against the principal debtor in the usual course of its business and the expenses of enforcing or obtaining or endeavouring to enforce or obtain payment of the debt guaranteed and such interest charges and expenses;

(c) the authorised deposit-taking institution or approved body (as the case may be) shall

S. 73(3) amended by No. 10254 s. 43(d).

No. 6138 s. 74.

s. 74

S. 74(b) amended by No. 11/2001 s. 3(Sch. item 15.5(a)).

S. 74(c) amended by Nos 37/1999 s. 58(Sch. 2 Pt 1 item 17), 11/2001 s. 3(Sch. item 15.5(b)).


100

obtain take and hold such securities (if any) for the payment of the principal debt as the Treasurer of Victoria may require;

S. 74(d) amended by Nos 10087 s. 3(1)(Sch. 1 item 19), 37/1999 s. 58(Sch. 2 Pt 1 item 17), 11/2001 s. 3(Sch. item 15.5(b)).s. 74

(d) the guarantee shall not be enforceable against the Treasurer of Victoria or against the Consolidated Fund unless and until the authorised deposit-taking institution or approved body (as the case may be) has fully exercised its rights and remedies under all securities (other than the guarantee itself) held by or for it in respect of the debt guaranteed, or unless the authorised deposit-taking institution or approved body (as the case may be) has under the provisions of the securities executed by the society in favour of the authorised deposit-taking institution or approved body (as the case may be) or of any of such securities become entitled to appoint a receiver of the undertaking and assets of the society; and

(e) the authorised deposit-taking institution or approved body (as the case may be) shall not without the consent in writing of the Treasurer of Victoria assign or encumber the benefit of the guarantee.

S. 74(e) amended by Nos 37/1999 s. 58(Sch. 2 Pt 1 item 17), 11/2001 s. 3(Sch. item 15.5(b)).


101

75 Aggregate liability under guaranteesS. 75(1) amended by Nos 6446 s. 2 (as amended by No. 6489 s. 4(Sch. item 11)), 6687 s. 2, 7030 s. 2, 7464 s. 2, 8298 s. 5, 9108 s. 2, 10/1989 s. 3, 30/1990 s. 3, 48/1992 s. 103.s. 75

(1) The Treasurer of Victoria shall not execute any guarantee under this Division of this Part where such guarantee would involve him in a liability which when added to the total liabilities subsisting in respect of other guarantees executed under this Division of this Part would in the aggregate exceed the amount of $1 000 000 000.

(2) Such sums as may from time to time become due and payable by the Treasurer of Victoria under any guarantee authorized by this Division of this Part shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).

75A Execution of guarantees and entering into of agreements

(1) Any guarantee or agreement authorized by this Division of this Part to be executed or entered into by the Treasurer of Victoria (in this section referred to as the Treasurer) may be executed or entered into for and on behalf of the Treasurer by any other person whom the Treasurer may authorize in writing either generally or in any particular case so to do.

No. 6138 s. 75.

S. 75(2) amended by Nos 10087 s. 3(1)(Sch. 1 item 19), 74/2000 s. 3(Sch. 1 item 27).

S. 75A inserted by No. 9776 s. 2(b).


102

(2) The Treasurer shall cause to be published in the Government Gazette notice of the authorization under subsection (1) of any person to execute a guarantee or enter into an agreement for and on behalf of the Treasurer.

(3) A guarantee executed or agreement entered into by a person for and on behalf of the Treasurer pursuant to subsection (1) shall be deemed to have been executed or entered into by the Treasurer.

(4) All courts shall take judicial notice of the signature to a guarantee or agreement (being a guarantee or agreement that is authorized by this Division of this Part to be executed or entered into by the Treasurer) of any person who is or has been authorized by the Treasurer under subsection (1) to execute the guarantee or enter into the agreement for and on behalf of the Treasurer.

Division 2—Indemnities

76 Treasurer's indemnity against lossS. 76(1) substituted by Nos 6909 s. 3, 7097 s. 7, amended by Nos 7225 s. 2, 7521 s. 2(a)(b), substituted by No. 7983 s. 4, amended by Nos 8462 s. 3, 8543 s. 4, 8586 s. 2, 8786 s. 5(a), 8882 s. 2, 9601 s. 2.s. 76

(1) Where a society proposes to make an advance to a member upon the security of any land and a dwelling-house erected or to be erected thereon and the amount of the advance less the value of the share capital of the member does not exceed an amount to be determined from time to time by the Governor in Council then the Treasurer of Victoria may enter into an agreement with the society proposing to make the advance and may by such agreement undertake to indemnify the

No. 6138 s. 76.


103

society against such of the loss sustained by the society in respect of that advance as is directly attributable to the fact that the amount of the advance reduced by the value of the share capital of the member exceeded eighty per centum of the value of the security.

(1A) For the purposes of subsection (1) of this section the value of the land and dwelling-house which is proposed as the security for an advance shall be ascertained in such manner as the Registrar directs.

(2) Any such agreement shall operate and have effect until the mortgage given by the member to the society is assigned or transferred by the society or the registrar certifies to the Treasurer of Victoria that the amount owing to the society by the member in respect of the advance to which the agreement relates, reduced by the value of the share capital of the member, is not more than sixty-six and two-thirds per centum of the value of the land and dwelling-house as ascertained in accordance with the last preceding subsection.

(3) The value of the share capital of a member of any society shall, for the purposes of this Division of this Part, be calculated in such manner as the Registrar directs.

(4) Any direction given under the last preceding subsection shall be given in relation to the society specified in the direction and shall not be altered while any agreement with that society under this Division of this Part has effect.

S. 76(1A) inserted by No. 6909 s. 3, amended by Nos 10254 s. 43(d), 48/1992 s. 102(b), 37/1999 s. 58(Sch. 2 Pt 1 item 18).

s. 76


S. 76(3) amended by Nos 10254 s. 43(d), 48/1992 s. 102(b), 37/1999 s. 58(Sch. 2 Pt 1 item 18).


104

77 Aggregate liability under indemnities

S. 77(1) amended by Nos 8160 s. 2, 8298 s. 6, 8586 s. 3, 8786 s. 5(b), 8882 s. 3, 9206 s. 2, 9601 s. 3, 10254 s. 44.s. 77

(1) The Treasurer of Victoria shall not enter into any agreement under this Division of this Part where the agreement would involve him in a liability which when added to the total liabilities subsisting in respect of other agreements entered into under this Division of this Part would in the aggregate exceed the amount of $30 000 000 or such other amount as is prescribed by regulation.

(2) Such sums as may from time to time become due and payable by the Treasurer of Victoria under any agreement authorized by this Division of this Part shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).

77A Entering into of agreements

(1) Any agreement authorized by this Division of this Part to be entered into by the Treasurer of Victoria (in this section referred to as the Treasurer) may be entered into for and on behalf of the Treasurer by any other person whom the Treasurer may authorize in writing either generally or in any particular case so to do.

(2) The Treasurer shall cause to be published in the Government Gazette notice of the authorization

No. 6138 s. 77.

S. 77(2) amended by No. 10087 s. 3(1)(Sch. 1 item 19).

S. 77A inserted by No. 9776 s. 2(c).


105

under subsection (1) of any person to enter into an agreement for and on behalf of the Treasurer.

(3) An agreement entered into by a person for and on behalf of the Treasurer pursuant to subsection (1) shall be deemed to have been entered into by the Treasurer.

(4) All courts shall take judicial notice of the signature to an agreement (being an agreement that the Treasurer is authorized by this Division of this Part to enter into) of any person who is or has been authorized by the Treasurer under subsection (1) to enter into the agreement for and on behalf of the Treasurer.

_______________

s. 77A


106

PART VI—MISCELLANEOUS

Division 1—Evidence

78 Certificates

(1) Any certificate of incorporation given by the registrar shall be received in evidence as if it were the original certificate.

(2) Every certificate of incorporation or other official document relating to a society signed by or bearing the seal of the registrar shall be received in evidence without further proof.

(3) Judicial notice shall be taken of the signature and seal of any person who holds or has held the office of registrar, if the signature or seal purports to be attached to any certificate or other official document.

(4) The provisions of this section shall extend to any copy of the rules of a society certified by the registrar to be a true copy of its registered rules.

79 Rules

A printed copy of the rules of a society purporting to be certified by the secretary of the society to be a true copy of its registered rules shall be prima facie evidence of the rules.

80 Registers

The register of directors members and shares of a society shall be prima facie evidence of the particulars directed or authorized by or under this Act to be inserted therein.

No. 6138 s. 78.

s. 78

No. 6138 s. 79.

No. 6138 s. 80.


107

81 Minutes

(1) Every entry in the minutes purporting to be a minute of the business transacted at a meeting of a society or of the board, and to be signed by the chairman at a subsequent meeting, shall be prima facie evidence that the business as therein recorded was transacted at the meeting and that the meeting was duly convened and held.

(2) An entry in the minutes of a meeting of a society to the effect that a resolution was carried, or was lost, shall be prima facie evidence of the fact without proof of the number or proportion of votes recorded for or against the resolution.

82 Entries in books

A copy of any entry in a book of a society regularly kept in the course of business shall, if certified by statutory declaration of the secretary to be a true copy of the entry, be received in evidence in any case where and to the same extent as the original entry itself is admissible.

83 Saving

The provisions of this Division of this Part shall be read and construed as in aid of and not in derogation from any other Act or law relating to evidence judicial notice or the proof of documents.

Division 2—Offences

84 Failure to display name, keep rules, give returns or information

(1) A society shall be guilty of an offence, if it fails—

(a) to paint or affix or to keep painted or affixed the name of the society on the outside of its office as required by this Act;

No. 6138 s. 81.

s. 81

No. 6138 s. 82.

No. 6138 s. 83.

No. 6138 s. 84.


108

(b) to keep any register or account, or to make any entry therein, as required by or under this Act;

(c) to have at its office and open to inspection a copy of this Act and the regulations, or of the rules, or of the last balance-sheet and final accounts together with the report of the auditor, or any register, as required by this Act; or

(d) to transmit to the registrar any notice or return as required by this Act.

(2) A society shall be guilty of an offence if it refuses or fails to furnish within the specified time any information lawfully required by the registrar or by any other person authorized in that behalf under this Act.

(3) Where the society is guilty of any offence under this section, the society and every director or officer of the society who knowingly and wilfully authorizes or permits the default shall be liable to a penalty of not more than $10 for every day during which the default continues.

85 Acting as director after office vacated

Any person who knowingly continues to exercise the powers of a director of a society after his office as director has been vacated and any director of a society who knowingly permits or suffers any such person to exercise the powers of a director shall be guilty of an offence and liable to a penalty of not more than $200.

No. 6138 s. 85.

s. 85


109

86 Carrying on unlawful business

(1) A society shall be guilty of an offence if it contravenes any restriction imposed by this Act or the regulations or its rules on its power to carry out business, and, in particular, if it raises money on loan or makes any advance except as authorized by this Act and the regulations and its rules.

(2) Where the society is guilty of any offence under this section, the society shall be liable to a penalty of not more than $200 and every director or officer who knowingly and wilfully authorizes or permits such contravention shall be guilty of an offence and liable to a penalty of not more than $100.

87 Carrying on business with too few members

Where the number of members of a society is reduced below twenty every director of the society shall while the number remains so reduced comply with all directions of the registrar.

88 Using wrong name

(1) If a society in any manner uses any name other than its registered name, it shall be guilty of an offence and liable to a penalty of not more than $10 for every day during which the offence continues.

(2) If an officer of a society or a person on its behalf issues or authorizes the issue of any notice advertisement or other official publication of the society, or signs or authorizes to be signed on behalf of the society any bill of exchange, cheque, promissory note, endorsement, order for money, receipt, or other document required in the business of the society, wherein its name does not appear in legible characters, he shall be guilty of an offence and liable to a penalty of not more than $20.

No. 6138 s. 86.

No. 6138 s. 87S. 87 substituted by No. 7097 s. 8, amended by No. 37/1999 s. 58(Sch. 2 Pt 2 item 12).

s. 86

No. 6138 s. 88.


110

89 Improper sealing

If any officer of a society or any person on its behalf uses any seal purporting to be the seal of the society, wherein its name does not appear in legible characters, he shall be guilty of an offence and liable to a penalty of not more than $100.

90 Taking money before registration

If before a society is registered any person takes any money in consideration of the allotment of any share or interest in the society, he shall be guilty of an offence and liable to a penalty of not more than $100.

91 False copies of rules

If any person gives to any member of a society or to any person intending or applying to become a member of a society a copy of any rules or any alterations of the same other than those which have been duly registered representing that the same are binding on the members of the society, or if any person makes any alteration in any of the rules of the society after they have been registered, and circulates the same representing that they have been duly registered, when they have not been so registered, he shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence and liable to a penalty of not more than $200.

No. 6138 s. 89.

No. 6138 s. 90.

s. 89

No. 6138 s. 91.


111

92 False entries

If any person wilfully makes, orders, or allows to be made any entry or erasure in, or omission from, any balance-sheet or account of a society or any book register return or document required to be kept, sent, produced, or delivered for the purposes of this Act, with intent to falsify the same, or to evade any of the provisions of this Act, he shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence and liable to a penalty of not more than $200.

93 Imposition and misapplication of moneys

If any person, by false representation or imposition, obtains possession of any property of a society, or having the same in his possession, withholds or misapplies the same or wilfully applies any part thereof to purposes other than those specified or authorized by the rules of the society or by this Act, he shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence and liable to a penalty of not more than $200.

94 Improper commissions

(1) Any officer of a society who accepts from any person for or in connexion with a transaction of such person with the society any commission fee or reward, whether pecuniary or otherwise, which is not authorized to be paid or given by or under this Act or the rules of the society shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence and liable to imprisonment for a term of not more than six months or to a penalty of not more than $200.

No. 6138 s. 92.

No. 6138 s. 93.

s. 92

No. 6138 s. 94.S. 94 substituted by No. 6928 s. 3.


112

(2) Any person (whether an officer of a society or not) who for or in connexion with a transaction or proposed transaction of any other person with a society demands or receives from that other person or retains from or pays out of any moneys held by him on behalf of that other person any commission or fee which is not authorized to be paid by or under this Act or the rules of the society or which is in excess of any commission or fee so authorized shall be guilty of an offence and liable to imprisonment for a term of not more than six months or to a penalty of not more than $200.

95 General penalties

Any society or person which or who contravenes or fails to comply with any provision of this Act shall be guilty of an offence and, where no penalty is expressly provided therefor, shall be liable to a penalty of not more than $50.

96 Recovery of fines, penalties

Proceedings for any offence against this Act or the regulations may be instituted by the registrar or by any person aggrieved and any fine or penalty paid or recovered in respect thereof shall be paid into the Consolidated Fund.

97 Civil remedies in case of contravention

If a society in making any advance or raising any loan contravenes or fails to comply with any provision of this Act or the regulations or any rule of the society, the civil rights and liabilities of the society or any other person in respect of the recovery of the advance or loan shall not be affected or prejudiced by the contravention or failure, save that the money shall become immediately payable, and the same remedies may be had for the recovery of the advance or loan and

S. 94(2) amended by No. 7125 s. 3.

No. 6138 s. 95.

s. 95

No. 6138 s. 96.S. 96 amended by No. 10087 s. 3(1)(Sch. 1 item 19).

No. 6138 s. 97.


113

for the enforcement of any security therefor as if there had not been any such contravention or failure.

Division 3—Regulations

98 Regulations

(1) The Governor in Council may make regulations for or with respect to prescribing any matter or thing authorized or required to be prescribed by this Act or necessary or expedient to be prescribed for the purposes of this Act and may by any such regulation prescribe a penalty (not in any case exceeding $40) for any contravention of or failure to comply with any such regulation.

* * * * *

__________________

No. 6138 s. 98.

S. 98(2) repealed by No. 6886 s. 3.

s. 98


114

SCHEDULE

Number of Act Title of Act Extent of Repeal

6138 Co-operative Housing Societies Act 1957

The Whole

═══════════════

Section 2.Sch. amended by No. 6505 s. 2.

Sch.


115

ENDNOTES

1. General InformationThe Co-operative Housing Societies Act 1958 was assented to on 30 September 1958 and came into operation on 1 April 1959: Government Gazette 18 March 1959 page 892.

Endnotes


116

2. Table of AmendmentsThis Version incorporates amendments made to the Co-operative Housing Societies Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Co-operative Housing Societies (Guarantees) Act 1958, No. 6446/1958 (as amended by No. 6489/1959)

Assent Date: 18.11.58Commencement Date: 18.11.58Current State: All of Act in operation

Companies Act 1958, No. 6455/1958Assent Date: 2.12.58Commencement Date: 1.4.59: Government Gazette 4.3.59 p. 496Current State: All of Act in operation

Co-operative Housing Societies (Residential Flats) Act 1958, No. 6457/1958 (as amended by No. 6489/1959)


Co-operative Housing Societies (Insurance) Act 1958, No. 6461/1958 (as amended by No. 6489/1959)


Statute Law Revision Act 1959, No. 6505/1959Assent Date: 5.5.59Commencement Date: 1.4.59: s. 1(2)Current State: All of Act in operation

Co-operative Housing Societies (Amendment) Act 1960, No. 6618/1960Assent Date: 1.6.60Commencement Date: 1.6.60Current State: All of Act in operation

Co-operative Housing Societies (Guarantees) Act 1960, No. 6687/1960Assent Date: 6.12.60Commencement Date: 6.12.60Current State: All of Act in operation


Companies Act 1961, No. 6839/1961Assent Date: 19.12.61Commencement Date: 1.7.62: Government Gazette 21.2.62 p. 392Current State: All of Act in operation

Endnotes


117

Subordinate Legislation Act 1962, No. 6886/1962Assent Date: 8.5.62Commencement Date: 1.8.62: Government Gazette 4.7.62 p. 2314Current State: All of Act in operation

Co-operative Housing Societies Act 1962, No. 6909/1962Assent Date: 7.11.62Commencement Date: 7.11.62Current State: All of Act in operation

Housing Advances and Loans (Improper Commissions) Act 1962, No. 6928/1962Assent Date: 20.11.62Commencement Date: 20.11.62Current State: All of Act in operation


Co-operative Housing Societies (Amendment) Act 1963, No. 7097/1963 (as amended by No. 7142/1964)

Assent Date: 10.12.63Commencement Date: 1.4.64: Government Gazette 26.3.64 p. 707Current State: All of Act in operation

Housing Advances and Loans (Improper Commissions) Act 1964, No. 7125/1964Assent Date: 5.5.64Commencement Date: 5.5.64Current State: All of Act in operation

Co-operative Housing Societies (Indemnities) Act 1964, No. 7225/1964Assent Date: 15.12.64Commencement Date: 15.12.64Current State: All of Act in operation

Statute Law Revision Act 1965, No. 7332/1965Assent Date: 14.12.65Commencement Date: 14.12.65: subject to s. 3Current State: All of Act in operation

Co-operative Housing Societies (Amendment) Act 1966, No. 7388/1966Assent Date: 10.5.66Commencement Date: 1.7.66: Government Gazette 29.6.66 p. 2270Current State: All of Act in operation

Co-operative Housing Societies (Financial) Act 1966, No. 7464/1966Assent Date: 29.11.66Commencement Date: 29.11.66Current State: All of Act in operation


Endnotes


118

Strata Titles Act 1967, No. 7551/1967Assent Date: 17.3.67Commencement Date: S. 47 on 1.7.67: Government Gazette 24.5.67 p. 1754Current State: This information relates only to the provision/s

amending the Co-operative Housing Societies Act 1958




Statute Law Revision Act 1971, No. 8181/1971Assent Date: 23.11.71Commencement Date: 23.11.71: subject to s. 2(2)Current State: All of Act in operation

Housing (Amendment) Act 1971, No. 8206/1971Assent Date: 14.12.71Commencement Date: 14.12.71Current State: All of Act in operation


Housing Ministry Act 1972, No. 8339/1972Assent Date: 5.12.72Commencement Date: 2.4.73: Government Gazette 28.3.73 p. 652Current State: All of Act in operation

Valuation of Land (Valuers) Act 1973, No. 8405/1973Assent Date: 17.4.73Commencement Date: 1.7.73: Government Gazette 13.6.73 p. 1966Current State: All of Act in operation


Endnotes


119





Co-operative Housing Societies (Leasehold Securities) Act 1977, No. 8978/1977Assent Date: 3.5.77Commencement Date: 3.5.77Current State: All of Act in operation

Age of Majority Act 1977, No. 9075/1977Assent Date: 6.12.77Commencement Date: 1.2.78: Government Gazette 11.1.78 p. 97Current State: All of Act in operation


Workers Compensation (Amendment) Act 1978, No. 9136/1978Assent Date: 23.5.78Commencement Date: S. 4(3) on 14.5.79: Government Gazette 9.5.79

p. 1351Current State: This information relates only to the provision/s




Endnotes


120

Companies (Consequential Amendments) Act 1981, No. 9699/1981Assent Date: 5.1.82Commencement Date: S. 22 on 5.1.82: s. 2(4); s. 23 on 1.7.82: s. 2(1)Current State: This information relates only to the provision/s


Co-operative Housing Societies and Co-operation (Amendment) Act 1982, No. 9776/1982


Housing Act 1983, No. 10020/1983Assent Date: 13.12.83Commencement Date: 1.1.84: Government Gazette 21.12.83 p. 4045Current State: All of Act in operation

Statute Law Revision Act 1984, No. 10087/1984Assent Date: 22.5.84Commencement Date: 22.5.84: subject to s. 3(2)Current State: All of Act in operation

Co-operation (Amendment) Act 1985, No. 10254/1985Assent Date: 10.12.85Commencement Date: 1.1.86: Government Gazette 18.12.85 p. 4642Current State: All of Act in operation

Courts Amendment Act 1986, No. 16/1986Assent Date: 22.4.86Commencement Date: S. 30 on 1.7.86: Government Gazette 25.6.86 p. 2180Current State: This information relates only to the provision/s


Mental Health Act 1986, No. 59/1986Assent Date: 3.6.86Commencement Date: S. 143(2) on 1.10.87: Government Gazette 30.9.87

p. 2585Current State: This information relates only to the provision/s


Supreme Court Act 1986, No. 110/1986Assent Date: 16.12.86Commencement Date: 1.1.87: s. 2Current State: All of Act in operation

Friendly Societies Act 1986, No. 119/1986 (as amended by No. 36/1990)Assent Date: 23.12.86Commencement Date: 1.9.87: Government Gazette 26.8.87 p. 2257Current State: All of Act in operation

Endnotes


121

Subdivision Act 1988, No. 53/1988 (as amended by No. 47/1989)Assent Date: 31.5.88Commencement Date: 30.10.89: Government Gazette 4.10.89 p. 2532Current State: All of Act in operation


Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989Assent Date: 14.6.89Commencement Date: S. 3(Sch. items 33.1, 33.2) on 1.9.90: Government

Gazette 25.7.90 p. 2217Current State: This information relates only to the provision/s



Building, Co-operative Housing and Friendly Societies (Amendment) Act 1990, No. 36/1990

Assent Date: 13.6.90Commencement Date: Ss 11–13, 16–19 on 18.12.91: Government Gazette

18.12.91 p. 3486; ss 14, 15 on 5.8.92: Government Gazette 5.8.92 p. 2050

Current State: This information relates only to the provision/s amending the Co-operative Housing Societies Act 1958

Financial Institutions (Victoria) Act 1992, No. 48/1992Assent Date: 30.6.92Commencement Date: Pt 13 (ss 93–104) on 1.7.92: Government Gazette

1.7.92 p. 1692Current State: This information relates only to the provision/s


Valuation of Land (Amendment) Act 1994, No. 91/1994Assent Date: 6.12.94Commencement Date: S. 36(2) on 1.1.95: s. 2(2)Current State: This information relates only to the provision/s


Financial Management and Audit Acts (Amendment) Act 1995, No. 43/1995Assent Date: 14.6.95Commencement Date: S. 15 on 14.6.95: s. 2(6)Current State: This information relates only to the provision/s


Endnotes


122

Financial Institutions Legislation (Amendment) Act 1997, No. 61/1997Assent Date: 5.11.97Commencement Date: 5.11.97: s. 2Current State: All of Act in operation

Audit (Amendment) Act 1997, No. 93/1997Assent Date: 16.12.97Commencement Date: S. 28(Sch. item 8) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Transfer of Land (Single Register) Act 1998, No. 85/1998Assent Date: 17.11.98Commencement Date: S. 24(Sch. item 14) on 1.1.99: s. 2(3)Current State: This information relates only to the provision/s


Financial Sector Reform (Victoria) Act 1999, No. 37/1999Assent Date: 8.6.99Commencement Date: S. 58(Sch. 2) on 1.7.99: Special Gazette (No. 97)



Audit (Amendment) Act 1999, No. 53/1999Assent Date: 14.12.99Commencement Date: S. 26(Sch. item 7) on 1.1.00: Government Gazette



Business Registration Acts (Amendment) Act 2000, No. 35/2000Assent Date: 6.6.00Commencement Date: S. 44 on 19.6.00: Government Gazette 15.6.00 p. 1248Current State: This information relates only to the provision/s


Endnotes


123

Statute Law Revision Act 2000, No. 74/2000Assent Date: 21.11.00Commencement Date: S. 3(Sch. 1 item 27) on 22.11.00: s. 2(1)Current State: This information relates only to the provision/s


Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date: 8.5.01Commencement Date: S. 3(Sch. item 15) on 1.6.01: s. 2(2)Current State: This information relates only to the provision/s


Statute Law Amendment (Relationships) Act 2001, No. 27/2001Assent Date: 12.6.01Commencement Date: S. 8(Sch. 6 item 1) on 28.6.01: Government Gazette



Corporations (Consequential Amendments) Act 2001, No. 44/2001Assent Date: 27.6.01Commencement Date: S. 3(Sch. item 19) on 15.7.01: s. 2Current State: This information relates only to the provision/s


Fair Trading (Amendment) Act 2003, No. 30/2003Assent Date: 27.5.03Commencement Date: S. 83 on 28.5.03: s. 2(1)Current State: This information relates only to the provision/s


Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 42) on 5.4.05: Government



Legal Profession (Consequential Amendments) Act 2005, No. 18/2005Assent Date: 24.5.05Commencement Date: S. 18(Sch. 1 item 18) on 12.12.05: Government



Endnotes


124

Statute Law (Further Revision) Act 2006, No. 29/2006Assent Date: 6.6.06Commencement Date: S. 3(Sch. 1 item 6) on 7.6.06: s. 2(1)Current State: This information relates only to the provision/s


Relationships Act 2008, No. 12/2008Assent Date: 15.4.08Commencement Date: S. 73(1)(Sch. 1 item 10) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 2 item 12) on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Mental Health Act 2014, No. 26/2014Assent Date: 8.4.14Commencement Date: S. 455(Sch. item 4) on 1.7.14: s. 2(1)Current State: This information relates only to the provision/s


Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date: 3.6.14Commencement Date: S. 10(Sch. item 20) on 1.7.14: Special Gazette

(No. 200) 24.6.14 p. 2Current State: This information relates only to the provision/s


Inquiries Act 2014, No. 67/2014Assent Date: 23.9.14Commencement Date: S. 147(Sch. 2 item 10) on 15.10.14: Special Gazette

(No. 364) 14.10.14 p. 2Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


125

3. Explanatory Details

Endnotes


126

1 S. 3(1) def. of valuator: Section 37 of the Valuation of Land (Amendment) Act 1994, No. 91/1994 reads as follows:

37Transitional provision concerning references to registered valuers in contracts etc.

(1) This section applies to any contract, deed or other document that is in force on 1 January 1995 and that contains a reference to a registered valuer.

(2) Unless the parties to the contract, deed or other document otherwise agree, a reference to a registered valuer in the contract, deed or document is to be read as a reference to a person who holds the qualifications or experience specified under section 13DA(1A) of the Valuation of Land Act 1960.

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