Building Societies Act 1990 (SA)

SOUTH AUSTRALIA

BUILDING SOCIETIES ACT, 1990 BUILDING SOCIETIES ACT, 1990

being

Building Societies Act, 1990, No. 85 of 1990

[Assented to 20 December 1990]1

1 Act not in operation.

An Act to provide for the registration, administration and control of building societies; to repeal the Building Societies Act, 1975; and for other purposes.

The Parliament of South Australia enacts as follows:

PART I

PRELIMINARY

Short title

1. This Act may be cited as the Building Societies Act, 1990.

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Interpretation 3. In this Act, unless the contrary intention appears—

"accounting records" includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry, and books and records which record such entries, and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up:

"accounts" means profit and loss accounts and balance-sheets, and includes statements, reports and notes, other than auditors’ reports or directors’ reports, attached to or intended to be read with any of those accounts or balance-sheets:

"amalgamated building society" means a building society or foreign building society that is registered, or continues to be registered, under this Act as a result of an amalgamation under Part VII:

"approved accounting standard" means approved accounting standard as defined in Part VI of

the Companies (South Australia) Code:

"association" means an association of building societies registered under Part XI:

"bank" means a body corporate authorized to carry on the business of banking under the Banking Act 1959 of the Commonwealth, as varied from time to time, or under an Act substituted for that Act, and includes the State Bank of South Australia and any body authorized by the law of another State or a Territory of the Commonwealth to carry on the business of banking:

"board", in relation to a building society or association, means the board of directors of the

building society or association:

"books" includes any register or other record of information and any accounts or accounting

records, however compiled, recorded or stored, and also includes any document:

"building" includes part of a building:

"building society" means a building society registered and incorporated under this Act:

"charge" means a charge created in any way and includes a mortgage and an agreement to give

or execute a charge or mortgage, whether on demand or otherwise:

"chargee" means the holder of a charge and includes a person in whose favour a charge is given

or executed, whether on demand or otherwise:

"the Commission" means the Corporate Affairs Commission:

"company" means a company as defined in section 5(1) of the Companies (South Australia)

Code:

"corporation" means a corporation as defined in section 5(1) of the Companies (South Australia)

Code:

"the Court" means the Supreme Court:

"credit union" means a credit union registered under the Credit Unions Act, 1989:

"date of amalgamation" means the date on which the Commission issues a certificate of

amalgamation in respect of an amalgamation under Part VII:

"director", in relation to a corporation, means a director as defined in section 5(1) of the

Companies (South Australia) Code:

"disclosure statement" means a disclosure statement issued or to be issued by a building society in accordance with Part IV in relation to securities the subject of any public offer, invitation or issue by the building society:

"executive officer", in relation to a building society, foreign building society or association, means a person by whatever name called who is concerned, or takes part, in the management of the body:

"expert", in relation to a matter, means a person whose profession or reputation gives authority

to a statement made by the person in relation to the matter:

"foreign building society" means a body corporate registered as a foreign building society under

Part X or under Part VII as a result of an amalgamation under that Part:

"friendly society" means a friendly society incorporated under the Friendly Societies Act, 1919:

"group" means a holding building society and the subsidiaries of that building society:

"group accounts", in relation to a holding building society, means a set of consolidated accounts

for the group in relation to which that building society is the holding building society:

"guarantee" includes indemnity:

"issue", in relation to shares, includes allot:

"loan" includes the provision of credit by any means and "borrow" has a corresponding

meaning:

"member", in relation to a building society, means any person who holds, whether singly or jointly, a share in the building society or who has otherwise been admitted to membership of the building society in accordance with the rules of the building society:

"officer", in relation to a building society, foreign building society or association, means a director, secretary, treasurer, principal accounting officer or executive officer of the building society, foreign building society or association:

"permanent share", in relation to a building society, means a share in the building society other

than a withdrawable share:

"prescribed interest" means prescribed interest as defined in section 5(1) of the Companies

(South Australia) Code:

"profit or loss" means—

(a)	in relation to a building society—the profit or loss resulting from the operations of the building society;
or
(b)	in relation to a holding building society and its subsidiaries—the profit or loss resulting from the operations of the group constituted of the building society and its subsidiaries:

"prospectus" means a prospectus as defined in section 5(1) of the Companies (South Australia) Code, and includes an instrument issued in relation to shares in a building society that would be a prospectus if the building society were a corporation:

"the repealed Act" means the Building Societies Act, 1975, repealed by this Act:

"residential building" means a building occupied or to be occupied by a person as the person’s principal place of residence whether as owner, pursuant to a lease or tenancy agreement or otherwise, and includes—

(a)	a building intended to provide accommodation for aged persons, persons with physical or mental disabilities or indigent persons;
(b)	a retirement village within the meaning of the Retirement Villages Act, 1987, or a residential unit within the meaning of that Act;
(c)	a building of a class declared by regulation to be residential buildings for the purposes of this Act,

but does not include a building that is not situated within South Australia or a building of a

class declared by regulation not to be residential buildings for the purposes of this Act:

"residential development" means—

(a)	construction or improvement of a residential building or conversion of a building to a residential building;
(b)	acquisition of land for development referred to in paragraph (a);
(c)	division of land for development referred to in paragraph (a):

"securities" includes shares, debentures, stock, bonds, bills, notes, options, prescribed interests, and documents of any kind evidencing indebtedness, but does not include, in relation to any provision of this Act, securities of a class excluded by regulation from the application of that provision:

"share", in relation to a building society, means share in the share capital of the building

society:

"stock market" means a facility by means of which—

(a)	offers, invitations or acceptances for the sale, purchase or exchange of securities are regularly made or matched;
(b)	information is regularly provided as to the prices or consideration expected or required for the sale, purchase or exchange of securities:

"withdrawable share", in relation to a building society, means a share in the building society

that may be withdrawn by the holder of the share and includes—

(a)	such a share that may be withdrawn only after a specified period has elapsed or notice of a specified period has been given;
and
(b)	shares of a prescribed class.

Note: For definition of divisional penalties see Appendix.

Offer or invitation to the public

4. For the purposes of this Act—

(a)	a reference to an invitation to subscribe for or purchase securities includes a reference to an invitation to make an offer to subscribe for or purchase securities;
(b)	a reference to an offer of securities for subscription or purchase includes a reference to an offer to accept money on deposit or loan;
(c)	a reference to an invitation to subscribe for or purchase securities includes a reference to an invitation to lodge money on deposit or loan;
(d)	a reference to the public includes a reference to a section of the public, including the membership of a building society or a section of the membership of a building society.

Subsidiaries, holding corporations and related corporations

5. (1) In this section—

"corporation" means a corporation as defined in section 5(1) of the Companies (South Australia)

Code, and includes a building society.

(2) For the purposes of this Act, a corporation is, subject to subsection (4), to be taken to be a subsidiary of another corporation if—

(a)

that other corporation—

(i)	controls the composition of the board of directors of the first mentioned corporation;
(ii)	is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first mentioned corporation;

or

(iii) holds more than one-half of the issued share capital of the first mentioned corporation (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);
or
(b)	the first mentioned corporation is a subsidiary of any corporation that is that other corporation’s subsidiary (including a corporation that is that other corporation’s subsidiary by another application or other applications of this paragraph).

(3) Without limiting by implication the circumstances in which the composition of a corporation’s board of directors is to be taken to be controlled by another corporation, the composition of a corporation’s board of directors is to be taken to be controlled by another corporation if that other corporation, by the exercise of some power exercisable (whether with or without the consent or concurrence of any other person) by that other corporation, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other corporation is to be taken to have power to make such an appointment if—

(a)	a person cannot be appointed as a director without the exercise in his or her favour by that other corporation of such a power;
or
(b)	a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other corporation.

(4) In determining whether one corporation is a subsidiary of another corporation—

(a)	any shares held or power exercisable by that other corporation in a fiduciary capacity are to be treated as not held or exercisable by it;
(b)	subject to paragraphs (c) and (d), any shares held or power exercisable—
(i) by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity);

or

(ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary that is concerned only in a fiduciary capacity,

are to be treated as held or exercisable by that other corporation;

(c)	any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first mentioned corporation, or of a trust deed for securing any issue of such debentures, are to be disregarded;
and
(d)	any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) are to be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the other corporation or its subsidiary.

(5) A reference in this Act to the holding corporation of another corporation is a reference to a corporation of which that other corporation is a subsidiary.

(6) Where a corporation—

(a)	is the holding corporation of another corporation;
(b)	is a subsidiary of another corporation;
or
(c)	is a subsidiary of the holding corporation of another corporation,

that first mentioned corporation and that other corporation are, for the purposes of this Act, to be

taken to be related to each other.

Associates and groups of associated members

6. (1) Subject to subsection (2), for the purposes of this Act, a person is an associate of another or is associated with another if—

(a)	they are partners;
(b)	one is a spouse, parent or child of another;
(c)	they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust;
(d)	one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity;
(e)	one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the body corporate or other entity;
(f)	they are related corporations;
(g)	a relationship of a prescribed kind exists between them;
or
(h)	a chain of relationships can be traced between them under any one or more of the above paragraphs.

(2) Notwithstanding subsection (1), the Minister may, by notice in writing to the persons and any building society concerned, determine that specified persons are not to be treated as associates either generally or for a purpose specified in the notice.

(3) For the purposes of this Act, where—

(a)	one or more members of a building society are associates of any other member of the building society;
or
(b)	two or more members of a building society are associates of a person who is not a member of the building society,

those members constitute a group of associated members of the building society.

Companies and Securities Industry Codes do not apply to building societies or associations

7. (1) Except as otherwise expressly provided by or under this Act, the provisions of—

(a)	the Companies (South Australia) Code;
(b)	the Companies (Acquisition of Shares) (South Australia) Code;
and
(c)	the Securities Industry (South Australia) Code,

do not apply to or in relation to a building society or association.

(2) The regulations may apply specified provisions of the Codes referred to in subsection (1) to or in relation to building societies or associations, subject to such modifications as may be prescribed by regulation.

Application of Act to Starr-Bowkett building societies

8. (1) This Act applies to Starr-Bowkett building societies with such modifications, additions or exclusions as are prescribed by regulation.

(2) In this section—

"Starr-Bowkett building society" means a society that was, immediately before the

commencement of this Act—

(a)	registered as a building society under the repealed Act;
and
(b)	authorized to grant loans according to a procedure under which applicants ballot for precedence or are chosen by chance or lot.

PART II

ADMINISTRATION

DIVISION I—THE COMMISSION

Administration of Act 9. The Commission is, subject to the control and direction of the Minister, responsible for the

administration of this Act.

Registers and inspection

10. (1) For the purposes of this Act, the Commission must keep, in such form as it considers appropriate—

(a)	a register of building societies registered under this Act;
(b)	a register of foreign building societies registered under this Act;
and

(c) such other registers as this Act may require or as the Commission considers appropriate. (2) Subject to the regulations, a person may, on payment of the prescribed fee—

(a)

inspect a register kept by the Commission under this Act;

(b)

inspect any document registered by, or filed or lodged with, the Commission under this Act;

or

(c)

obtain from the Commission—

(i)	a certified copy of, or extract from, an entry in a register kept under this Act;
(ii)	a certified copy of a certificate of incorporation, certificate of registration or certificate of amalgamation issued under this Act;

or

(iii) a certified copy of, or extract from, any document registered by, or filed or lodged with, the Commission under this Act.

(3) If the Commission adopts a system of record keeping that involves the making of reproductions or transparencies of certificates or other documents—

(a)	the Commission cannot be required to produce the document from which the reproduction or transparency was produced;
(b)	any such reproduction or transparency is equivalent to an original;
and
(c)	a copy produced from the reproduction or transparency is to be regarded as a copy of the original.

Annual reports

11. (1) The Commission must on or before 30 September in each year submit to the Minister a report on the administration of this Act during the period of 12 months that ended on the preceding 30 June.

(2) The Minister must within 12 sitting days after receipt of the report cause a copy of the report to be laid before each House of Parliament.

DIVISION II—ADVISORY COMMITTEE

The Advisory Committee

12. (1) The Building Societies Advisory Committee is established.

(2) The Committee is to consist of six persons appointed by the Minister of whom—

(a)	one must be the Commissioner for Corporate Affairs or a nominee of the Commissioner;
(b)	one must be a nominee of the Treasurer;
(c)	one must be a nominee of the Minister of Housing and Construction;
and
(d)	three must be persons who are, in the opinion of the Minister, suitably qualified to represent the interests of building societies.

(3) Subject to subsection (4), the Minister may appoint a suitable person to be a deputy of a member of the Committee, and the deputy, while acting in the absence of that member, has all the powers, rights and duties of that member.

(4) The Minister may not appoint a person as the deputy of a member appointed under subsection (2)(b) or (c) unless that person has first been nominated by the Treasurer or the Minister of Housing and Construction respectively.

(5) A member of the Committee holds office at the pleasure of the Minister.

(6) The functions of the Committee are—

(a)	to make recommendations to the Minister on the more effective operation of building societies;
(b)	to make recommendations to the Minister in relation to regulations and model rules under this Act;
(c)	to make recommendations to the Minister in relation to maximum rates of interest applicable to loans made by building societies;
(d)	to keep legislation relevant to the operation of building societies under review and, where appropriate, to recommend amendments;
(e)	to advise the Minister or the Commission on matters referred to the Committee for advice;
and
(f)	to advise the Minister generally on the operation of building societies and matters relevant to the administration of this Act.

DIVISION III—POWERS OF INSPECTION

Extension of Companies Code powers of inspection

13. (1) The provisions of the Companies (South Australia) Code relating to inspection (Division I of Part II) extend, with such modifications, exclusions or additions as may be necessary for the purpose or as may be prescribed, to—

(a)	a building society;
(b)	a foreign building society;
(c)	an association;
(d)	a corporation that is a subsidiary of a building society;
(e)	a corporation or other body corporate with which a building society, or a subsidiary of a building society, has invested funds;
or
(f)	a prescribed body corporate or body corporate of a prescribed class,

as if, in the case of such a body that is not a company, it were a company.

(2) Without limiting the effect of subsection (1), any such powers of inspection may be exercised—

(a)	for a purpose or in relation to a matter referred to in Division I of Part II of the Companies (South Australia) Code;
or
(b)	for a purpose or in relation to a matter related to the administration or enforcement of this Act.

PART III

BUILDING SOCIETIES

DIVISION I—CARRYING ON BUSINESS AS A BUILDING SOCIETY

Building society must be registered under this Act

14. (1) Subject to this section, a person or body of persons, whether incorporated or unincorporated, other than a body that is registered as a building society or foreign building society under this Act, must not—

(a)	carry on business as a building society;
(b)	carry on business under any name or title of which the expression "building society" forms a part;
or
(c)	in any manner hold out that its business is that of a building society.

Penalty: Division 4 fine.

(2) For the purposes of subsection (1)—

(a)

a person or body of persons is to be taken to be carrying on business as a building society in the State if the person or body—

(i)	administers a fund in the State into which members of a group of persons contribute money and which is applied solely or principally in loans to those members for the purpose of purchasing residential buildings or for residential development;
(ii)	advertises for share capital, deposits or loan funds in the State under any name or title of which the expression "building society" forms a part;

or

(iii) being a body carrying on business as a building society outside the State—

(A)

advertises for share capital, deposits or loan funds in the State;

(B)

establishes or uses an office in the State for the receipt of share

capital, deposits or loan funds;

or

(C)

makes loans to members residing in the State;

(b)

a body carrying on business as a building society outside the State is not to be taken to be carrying on such a business in the State for the reason only that in the State it—

(i)	is or becomes a party to an action or suit or arbitration proceedings or effects settlement of an action, suit or proceedings or of any claim or dispute;
(ii)	holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs;
(iii)	maintains any bank account;
(iv)	effects any sale through an independent contractor;
(v)	creates evidence of any debt or creates a charge on real or personal property;
(vi)	secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts;
(vii)	conducts an isolated transaction that is completed within a period of 31 days, but not being one of a number of similar transactions repeated from time to time;

or

(viii) invests any of its funds or holds any property.

(3) This section does not apply to—

(a)	a person or body of persons (whether incorporated or unincorporated) exempted by the Minister from the provisions of this section;
(b)	a bank;
(c)	a credit union;
(d)	a friendly society;
or
(e)	a co-operative registered under the Co-operatives Act, 1983.

(4) The Minister may, by instrument in writing, grant a conditional or unconditional exemption for the purposes of subsection (3) and may, on non-compliance with a condition of the exemption, by instrument in writing, revoke the exemption.

DIVISION II—OBJECTS OF BUILDING SOCIETIES

Objects

15. (1) A building society must have as a primary object under its rules that the society is to operate as a financial co-operative—

(a)	raising funds by subscription, or otherwise, as authorized by this Act;
and
(b)	applying those funds, subject to this Act and its rules, in providing loans to its members for the purchase of residential buildings or for residential development.

(2) Subject to this Act, a building society may include in its primary objects under its rules

that—

(a)	the society is to undertake residential development itself;
(b)	the society is to provide capital for residential development by making loans to, or acquiring securities issued by, a subsidiary of the building society that has as its object or one of its objects the carrying out of residential development;
or
(c)	the society is to invest in a property trust established and managed by the building society solely or principally for the purpose of carrying out residential development.

(3) Subject to this Act, a building society may have such secondary objects as it thinks fit and specifies in its rules.

(4) The regulations may make provision for or with respect to the secondary objects of building societies and, in particular, may—

(a)	prohibit the specification of secondary objects of a class or description referred to in the regulations;
(b)	restrict the application or scope of secondary objects by the imposition of conditions or otherwise, whether or not being objects already specified in the rules of a building society;
(c)	make provisions of a savings or transitional nature in relation to any such prohibition or restriction.

DIVISION III—FORMATION AND REGISTRATION

Formation of building society

16. (1) Subject to this Part, a building society may be formed by any 25 or more natural persons of full age and capacity.

(2) No building society may be formed unless there has been a meeting for the purpose of forming the building society at which there are present 25 or more natural persons of full age and capacity.

(3) At the meeting referred to in subsection (2), the following documents must be presented to the prospective members of the building society:

(a)	a written statement showing the objects of the building society and the reasons for believing that an application for registration of the building society should be granted and that, if registered, the building society would be able to carry out its objects successfully;
and
(b)	a copy of the rules that are to be tendered for registration.

(4) If, at the formation meeting, or any subsequent or adjourned meeting, 25 or more persons of full age and capacity, after consideration of the statement and the rules, approve the rules with or without amendment, and sign an application for membership and shares, they may proceed to elect the first directors of the building society in accordance with the rules as so approved.

(5) No application for shares in a proposed building society, made prior to the registration of that building society, may be withdrawn, and every person who makes such an application is, on the registration of the building society, liable to pay to the building society—

(a)	the value of the shares for which the person applied;
or
(b)	the value of the minimum number of shares for which a member of the building society is entitled to subscribe,

whichever is the greater.

(6) The expenses of, and incidental to, the formation of the building society may be paid out of the capital or income of the building society.

(7) A person must not, prior to the registration of a building society—

(a)	make any offer or invitation to the public for the purpose of raising funds for the building society whether by the issue of shares or other securities or the acceptance of money on deposit or loan;
or
(b)	take any money in consideration of the issue of any shares or other securities of, or the grant of any loan by, the building society.

Penalty: Division 4 fine or division 4 imprisonment.

Registration

17. (1) A building society formed in accordance with this Part may apply to the Commission in the prescribed manner to be registered under this Act.

(2) An application for registration—

(a)

must be made within two months after the formation meeting at which the first directors of the building society were elected;

and

(b)

must be accompanied by—

(i)	a statutory declaration by the person presiding at the formation meeting and the secretary of that meeting that the requirements of this Part as to formation have been complied with;
(ii)	a copy of the statement presented to the meeting, signed by the person presiding and the secretary;
(iii)	two copies of the proposed rules of the building society, certified by the person presiding and the secretary to be the rules as approved at the meeting;
(iv)	a list containing the full name, address and occupation of each director;
(v)	a list containing the full name, address and occupation of each of 25 natural persons of full age and capacity who attended the meeting and applied for membership and shares;
(vi)	written estimates of all income (including deposits and share capital) and expenditure (including loans and allocation of funds to reserves) over each of the first three years of operation of the building society;
(vii)	such evidence as the Commission may require as to the eligibility of the building society for registration;

and

(viii) such other evidence as the Commission may require that the building society would, on registration, be able to carry out its objects successfully.

(3) If, on due application for registration under this section, the Commission is satisfied that the building society is eligible for registration, the Commission must register the building society and its rules and issue a certificate of incorporation in the prescribed form.

(4) A building society is eligible for registration under this section if—

(a)	the proposed rules of the building society are not contrary to this Act;
(b)	there are reasonable grounds for believing that, before the expiration of the period of three months from the date of its registration, the building society would have a paid-up share capital of not less than $10 000 000 of which not less than half is available on terms such that—
(i) repayment is not required before the expiration of seven years from the date of its receipt by the building society;

and

(ii) repayment may not be made except with the consent of the Commission;
(c)	there are reasonable grounds for believing that the building society, if registered, would be able to comply with the requirements of Part V and carry out its objects successfully;
and
(d)	there is no good reason why the building society or the proposed rules should not be registered.

DIVISION IV—INCORPORATION AND GENERAL POWERS

Incorporation

18. On the issue of a certificate of incorporation under this Part or under Part VII, a building society is a body corporate and—

(a)	has, subject to this Act and the rules of the building society, the legal capacity of a natural person;
(b)	has perpetual succession and must have a common seal;
and
(c)	may sue and be sued in its corporate name.

General powers

19. (1) Without limiting the effect of section 18, but subject to this Act and the rules of the building society, a building society has power—

(a)	to raise money—
(i) by issuing shares or other securities;

or

(ii) by accepting deposits;
(b)	to borrow money;
(c)	to give security by mortgaging or granting a floating charge over the whole undertaking of the building society or any rights or property of the building society or by any other means;
(d)	to acquire, hold, deal with and dispose of real and personal property;
(e)	to enter into contracts of employment, partnerships, joint ventures or any other contracts or arrangements;
(f)	to make loans and to give guarantees;
(g)	to form or acquire subsidiaries in Australia (but in no other place) for the carrying out of its objects;
(h)	to acquire securities of, make loans to, or give guarantees on behalf of, a subsidiary of the building society that is incorporated in Australia (but in no other place);

(i) to act as an agent or as a trustee and accept and hold in trust real and personal property;

(j)	to invest its funds in any manner;
(k)	to carry on all or any of its operations as a building society in another State or Territory of the Commonwealth (but in no other place) and, for that purpose, to exercise its other powers in such State or Territory;
(l)	to procure registration or recognition as a building society in another State or Territory of the Commonwealth;
(m)	to distribute any property of the building society among its members, in kind or otherwise;
and
(n)	to do any other thing authorized by this Act or the rules of the building society.

(2) The powers of a subsidiary formed or acquired by a building society are not limited by the objects of the building society or by limitations on the powers of the building society.

(3) Without limiting the effect of subsection (2), nothing in subsection (1) prevents a corporation that is a subsidiary of a building society from forming or acquiring a body corporate or other entity outside Australia as a subsidiary of that corporation.

(4) The regulations may make provision for or with respect to the powers of building societies and, in particular, may—

(a)	withdraw powers of a specified kind conferred by this Act or the rules of a building society;
(b)	restrict the scope of powers of a specified kind conferred by this Act or the rules of a building society;
and
(c)	make provisions of a savings or transitional nature in relation to any such withdrawal or restriction.

DIVISION V—RULES

Contents of rules

20. The Commission must not register any rules of a proposed building society unless—

(a)	they contain, in the opinion of the Commission, adequate provisions requiring the building society to insure against wrongful acts and defaults of its officers and employees and against other insurable risks assumed by the building society in the conduct of its business;
and
(b)	they contain the prescribed provisions and otherwise comply with the requirements of this Act.

Effect of rules 21. The rules of a building society bind the building society, its members and all persons

claiming under them.

Copies of rules 22. A building society must furnish any person with a copy of its rules on application and

payment of the prescribed fee.

Alteration of rules

23. (1) A building society may, by special resolution, alter its rules, but any such alteration does not take effect until it has been registered in accordance with this section.

(2) A building society must, within one month of the date of the meeting at which the special resolution approving an alteration was passed, apply to the Commission to have the alteration registered.

(3) Where the Commission is satisfied that the proposed alteration complies with the requirements of this Act, the Commission must register the alteration.

Power of Commission to alter rules

24. (1) Where, in the opinion of the Commission, the rules of a building society should be

altered—

(a)	to achieve compliance with any requirement of this Act;
(b)	in the interests of the members of the building society;
or
(c)	in the public interest,

the Commission may, by instrument in writing served on the building society, require it, within a period specified in the notice, to alter its rules in a manner specified in the instrument or otherwise in a manner approved by the Commission.

(2) Where a building society is required to alter its rules pursuant to subsection (1), the building society is not required to do so by special resolution or to obtain the approval of its members.

(3) Where a building society fails to comply with a requirement that it alter its rules, the

Commission may itself make the required alteration by notation on the registered copy of the rules.

(4) The Commission must give a building society notice in writing of any alteration of the rules of the building society effected by the Commission pursuant to this section and of the date on which the alteration comes into operation.

(5) Where the rules of a building society are altered by the building society or by the Commission pursuant to this section, the building society must notify its members of the alteration—

(a)	within one month of the alteration by notice published on two separate days in a newspaper circulating generally in the State and, where the building society is carrying on business as a building society in another State or Territory of the Commonwealth, on two separate days in a newspaper circulating generally in that State or Territory;
and
(b)	by notice given at the next meeting of the building society.

DIVISION VI—MEMBERSHIP

Members

25. (1) The members of a building society formed under this Act are those persons who sign an application for membership on the formation of the building society and any other persons who hold shares in the building society or are otherwise admitted to membership in accordance with the rules of the building society.

(2) No rights of membership may be exercised by any person until the person has made such payments in respect of membership, or acquired such shares or interests, as are required under the rules of the building society.

Minors

26. (1) Subject to any contrary provision in the rules of a building society, a person under the age of 18 years may be a member of a building society.

(2) A minor is not entitled to exercise any vote at any meeting of the building society.

Corporate member of building society

27. (1) A body corporate may, if the rules of a building society so provide, become a member of the building society.

(2) A corporate member may, by instrument in writing (a copy of which must be served on the building society), appoint a natural person to represent it at any meeting of members of the building society.

(3) Any person appointed under subsection (2) is entitled to receive notice of all meetings in the same manner as a member of the building society and is entitled to exercise the same rights of voting (either in person or by proxy) as a member of the building society.

Joint membership

28. (1) Where shares in a building society are held jointly or persons are admitted to membership as joint members, then, for the purpose—

(a)	of determining who is qualified to vote on a resolution of a meeting of the building society;
and
(b)	of determining the number or proportion of any members required to give effect to any provision of this Act or the rules of the building society,

the member whose name appears first in the register of members of the building society is to be

taken to be a member to the exclusion of the other person.

(2) Joint members of a building society are entitled to choose the order in which they are named in the register of members, but, failing any such choice, the building society may enter their names in such order as it thinks fit.

(3) Subject to the rules of a building society, where all shares in a building society held by a member are held jointly with another, any notice or other document may be given or sent by the building society to that member by giving or sending it to the member whose name appears first in the register of members of the building society.

Liability of members

29. Except as otherwise provided by this Act, a member of a building society is not liable by reason of his or her membership to contribute towards the payment of the debts and liabilities of the building society or the costs, charges and expenses of a winding up of the building society.

DIVISION VII—NAME AND OFFICE

Name 30. (1) The registered name of a building society is its name as specified in the rules of the

building society for the time being registered under this Act.

(2) The Commission must not register proposed rules or an alteration of the rules of a building society affecting the name of the building society unless satisfied that the proposed name—

(a)	is not such as to be misleading as to the nature, objects or purposes of the building society;
(b)	is not such as is likely to be confused with the name of any other body corporate or any registered business name;
(c)	is not undesirable as a name for a building society;
and
(d)	complies with any directions of the Minister as to the names of building societies.

(3) Where the Commission registers an alteration of the rules of a building society changing the name of the building society, the Commission, may, on the application of the building society, amend its certificate of incorporation or issue a fresh certificate.

(4) Where the registered name of a building society is changed pursuant to this Act, the building society must publish the change of name in such manner as the Commission directs.

(5) The Commission may, on the application of a building society, approve the use by a building society of a name other than its registered name subject to such conditions limiting the area and circumstances in which the other name may be used as the Commission may determine.

(6) The Commission may, by notice in writing to a building society, withdraw an approval given to the building society under subsection (5).

(7) A building society must not use a name other than—

(a)	its registered name;
or
(b)	subject to the conditions of the approval, a name approved under subsection (5).

Office and service

31. (1) Every building society must have a registered office.

(2) The first registered office of a building society is that appearing in the rules of the building society at the time of registration.

(3) If a building society desires to change its registered office, it must give notice in writing of the address of the new office to the Commission and, on registration by the Commission of the new address or on such later date as the building society may specify, the office becomes the registered office of the building society.

(4) A document may be served on a building society or an officer of the building society by leaving it at the registered office of the building society or by post enclosed in a prepaid registered letter addressed to the building society at its registered office.

Publication of name

32. (1) A building society must cause its registered name or a name approved by the Commission under this Division to appear in legible characters on its seal and in legible characters on all business letters, notices, advertisements and other official publications of the building society and on all bills of exchange, cheques, promissory notes, endorsements, orders for money or goods, invoices, receipts and other documents required in the business of the building society.

(2) A building society must paint or affix and keep painted or affixed on the outside of every office or place in which its business is carried on in a conspicuous position in letters easily legible its registered name or a name approved by the Commission under this Division and also, in the case of the registered office, the words "Registered Office".

PART IV

SHARES, OTHER SECURITIES AND CHARGES

DIVISION I—SHARES

General

33. (1) Shares in a building society may be of varying nominal values and of one or more classes as provided in the rules of the building society.

(2) Without limiting the effect of subsection (1), preference shares may be issued as a class of withdrawable shares or permanent shares.

(3) The Commission may, by notice published in the Gazette, declare that specified preference shares issued by a building society are a class of withdrawable shares or a class of permanent shares.

(4) A declaration under subsection (3) has effect and is final for the purposes of the application of this Act in relation to the shares to which the declaration relates.

(5) The rights attaching and terms and conditions applying to a class of shares are as provided in the rules of the building society or determined by the board in accordance with the rules, but no such rules may be registered unless the provisions in respect of those rights, terms and conditions comply with the requirements of this Act and are, in the opinion of the Commission, otherwise appropriate.

(6) Permanent shares in a building society may be issued as fully paid-up shares or shares to be paid for by periodical or other subscription.

(7) The rules of a building society may not provide for any share capital to be repaid in the event of the winding up of the building society in priority to funds of the building society consisting of deposits made with the building society.

(8) Subsection (7) does not prevent a building society from accepting money on deposit under an agreement under which the claims of the depositor are, in the event of the winding up of the building society, subordinated to the claims of other creditors and the holders of shares other than permanent shares in the building society.

(9) Where the rules of a building society provide for the issue of permanent shares of different classes, the rules must provide that each class of permanent shares ranks equally with the other class or classes of permanent shares in the event of the winding up of the building society.

(10) The amount of the share capital of a building society is to be determined according to the nominal value of the shares from time to time issued by the building society.

(11) A building society must not issue any shares other than permanent shares at a premium.

(12) The liability of a member of a building society in respect of a share on which no loan has been made is limited to the amount (if any) in arrears in respect of that share.

(13) The liability of a member of a building society in respect of a share on which a loan has been made is limited to the amount payable under or in respect of the loan together with the amount (if any) in arrears in respect of the share.

(14) A share in a building society may not be sold or transferred except with the approval of the board of the building society.

Rights of holders of preference shares to be set out in rules

34. A building society must not allot any preference shares or convert any issued shares into preference shares unless there are set out in the rules of the building society the rights of the holders of those shares with respect to repayment of capital, participation in surplus assets and profits, cumulative or non-cumulative dividends, payment of interest, voting, and priority of payment of capital, dividend and interest in relation to other shares or other classes of preference shares.

Limitation on shareholding

35. (1) Subject to this section, if—

(a)	the total nominal value of the permanent shares held by a member or a group of associated members of a building society exceeds the prescribed percentage of the total nominal value of all permanent shares issued by the building society;
or
(b)	the total nominal value of the withdrawable shares held by a member or a group of associated members of a building society exceeds the prescribed percentage of the total nominal value of all withdrawable shares issued by the building society,

the building society must—

(c)	in the case of either permanent or withdrawable shares, cancel the excess shares and pay to the holder of any such cancelled shares the amount paid up on the shares, together with any other amount to which the holder may be entitled in respect of those shares;
or
(d)	in the case of permanent shares, forfeit and sell the excess shares.

(2) This section does not apply in relation to excess shares in a building society held by a member or group of associated members if—

(a)	the member or one or more of the group had, before acquiring the excess shares, reported the proposal to acquire them to the Commission and obtained the approval of the Minister under Part VII;
and
(b)	the total nominal value of the shares held by the member or the group does not exceed the limit approved by the Minister under Part VII in relation to that member or group.

(3) For the purposes of this section, the prescribed percentage is—

(a)	in relation to permanent shares—10 per cent, or, if the building society specifies in its rules a lesser percentage to apply instead, that lesser percentage;
or
(b)	in relation to withdrawable shares—10 per cent, or, if the building society specifies in its rules a lesser percentage to apply instead, that lesser percentage.

(4) A building society that is required to cancel shares pursuant to this section must do so whether or not its rules make provision for the cancellation of shares.

(5) A building society must not cancel shares in accordance with this section if the result of taking such action would be that the building society fails to hold prime assets that satisfy the required prime assets ratio, or fails to maintain capital adequacy, in accordance with Part V, but, in that case, the building society must notify the Commission and take such action as the Commission may determine to achieve compliance with this section within such period as the Commission may determine.

(6) The order in which any shares are cancelled pursuant to this section must be as determined under the rules of the building society, or if there are no rules relating to that matter, as determined by the board of the building society.

(7) Section 53 applies in relation to the offering and sale of shares forfeited pursuant to this section as if the shares had been forfeited for non-payment of a call.

(8) Where—

(a)	the total nominal value of shares held by a member or a group of associated members of a building society exceeds the limit fixed by this section;
and
(b)	the building society is required to cancel or forfeit and sell the excess shares,

that member, or each member in that group of associated members, as the case may be, is not entitled to a vote in any meeting of members of the building society until the excess shares are cancelled or forfeited and sold.

Conversion of withdrawable share capital to deposits

36. (1) If authorized by its rules, a building society may, by special resolution, establish a scheme for the conversion of withdrawable share capital of the building society to deposits.

(2) A scheme under this section—

(a)	must make provision—
(i) for the cancellation, subject to this Act, of the withdrawable shares to which the scheme applies;

and

(ii) for the recording in the accounts of the building society, as a deposit lodged by each member who was the holder of shares so cancelled, of an amount equal to the amount paid up by the member on those shares, together with any other amount to which the member may be entitled in respect of the shares;

(b)

if the membership status of a person holding shares affected by the scheme would otherwise be lost, must make provision for the preservation of that status by one or more of the following:

(i)	by excluding shares, or conferring on the member the right to exclude shares, from the scheme;
(ii)	by conferring on the member the right to subscribe for permanent shares in place of shares affected by the scheme;
(iii)	by such other means as may be approved by the Commission;

and

(c)

may make provision for rights attaching to shares affected by the scheme to attach to other shares that will continue to be held by the member after implementation of the scheme.

(3) Special resolutions may be passed at a single meeting of a building society for the purposes

of—

(a)	altering the rules of the building society so as to authorize it to establish a scheme under this section;
and
(b)	establishing the scheme,

but, except to the extent necessary to enable both resolutions to be passed at the same meeting, the resolutions may not take effect before the alteration of rules has been registered by the Commission in accordance with Part III.

(4) A scheme under this section may not take effect unless the building society satisfies the Commission, by lodging such documents as the Commission may require, that it has—

(a)	taken action, as required by the Commission, to invite and receive applications from creditors for the discharge, partial discharge or securing of liabilities arising from debts or claims that would, as at the date fixed by the Commission, have been admissible in proof against the building society if the building society had then commenced to be wound up;
and
(b)	discharged or secured, or made appropriate arrangements for discharging or securing, such liabilities in accordance with applications received by it within a period fixed by the Commission.

Cancellation and forfeiture of shares

37. (1) The rules of a building society may provide for the cancellation by the building society or forfeiture to the building society of any of its shares, but no such rules may be registered unless the provisions in respect of cancellation or forfeiture comply with the requirements of this Act and are, in the opinion of the Commission, otherwise appropriate.

(2) Subject to this section, permanent shares in a building society may not be cancelled by the building society except—

(a)	in accordance with its rules and with the approval of the Commission;
or
(b)	pursuant to a provision of this Act other than this section.

(3) Where the Commission gives approval to the cancellation of permanent shares in a building society, the Commission may attach conditions to the approval and may, on non-compliance with a condition of the approval, revoke the approval.

(4) Subject to this section, shares (of any class) in a building society may not be cancelled by the building society if the membership status of the person holding any such shares would be lost except—

(a)	in accordance with the rules of the building society and at the request or with the consent of the person;
or
(b)	pursuant to a provision of this Act other than this section.

(5) Subject to subsection (6), a building society must not cancel any shares if the result of taking such action would be that the building society fails to hold prime assets that satisfy the required prime assets ratio, or fails to maintain capital adequacy, in accordance with Part V.

(6) Notwithstanding any other provision of this Act, a building society must cancel any share that is forfeited to the building society in accordance with this Act or its rules and is not required by this Act to be sold.

(7) Except in the case of shares in the building society forfeited to the building society or cancelled pursuant to a provision of this Act other than this section, a building society must pay to the holder of cancelled shares the amount paid up on the shares, together with any other amount to which the holder may be entitled in respect of the shares.

Charge and set off

38. (1) A building society has, in respect of any debt due from a member or past member of the building society, a charge on the shares of that member of the building society, and on the credit balance of any deposit account of that member or past member and on any dividend, interest, bonus or rebate payable to that member or past member.

(2) The charge created by this section may be enforced by the appropriation by the building society of the share capital or other money subject to the charge.

(3) Any share in respect of which the whole of the capital has been so appropriated is forfeited to the building society.

Dividends, interest, etc., in respect of shares

39. (1) A building society may, if authorized by its rules, and the board of the building society so determines, in respect of a particular class of shares—

(a)	distribute profits by way of dividends or bonus shares (whether fully or partly paid-up) to the holders of the shares;
or
(b)	pay interest out of its revenue to the holders of the shares,

or both.

(2) Dividends or bonus share issues in respect of permanent shares may vary in value proportionately according to the extent to which each permanent share in respect of which the payment or issue is made is paid up.

(3) A building society is guilty of an offence if dividends are paid otherwise than out of profits or, in the case of permanent shares, out of a share premium account maintained by the building society in accordance with Division III.

(4) If dividends are paid otherwise than out of profits in contravention of subsection (3), the creditors of the building society are entitled to recover from any officer of the building society who has knowingly caused or permitted such payment to be made the amount of the debts due by the building society to them respectively to the extent that the dividends so paid have exceeded profits.

(5) If the whole amount is recovered from one officer, that officer may recover contribution from any other officer similarly liable.

(6) A liability imposed on an officer under this section is extinguished on that person’s death.

(7) In this section—

"dividend" includes a payment by way of bonus.

Validation of shares improperly issued

40. (1) Where a building society has purported to issue shares and—

(a)	the creation or issue of those shares is invalid by reason of any provision of this Act or of the rules of the building society or for any other reason;
or
(b)	the terms of the purported issue are inconsistent with or are not authorized by any such provision,

the Court may, on application made by the building society, by a holder or mortgagee of any of those shares or by a creditor of the building society and on being satisfied that in all the circumstances it is just and equitable to do so, make an order—

(c)	validating the purported issue of those shares;
or
(d)	confirming the terms of the purported issue of the shares,

or both.

(2) On an office copy of an order made under subsection (1) being lodged with the Commission, the shares to which the order relates are to be taken to have been validly issued on the terms of the issue of the shares.

DIVISION II—ISSUE OF SECURITIES

Disclosure statement required in relation to issue of securities

41. (1) A building society must not—

(a)	offer to the public for subscription or purchase;
(b)	invite the public to subscribe for or purchase;
or
(c)	issue to the public,

any securities, whether or not being securities of the building society, unless the building society

has—

(d)	first registered with the Commission a disclosure statement relating to the securities;
and
(e)	when issuing any form of application for the securities, or any form that is to accompany money lodged on deposit or loan prior to the issue of the securities, attached to that form a copy of the disclosure statement as registered by the Commission.

Penalty: Division 4 fine or division 4 imprisonment.

(2) A person other than the building society must not—

(a)	offer to the public for subscription or purchase;
(b)	invite the public to subscribe for or purchase;
or
(c)	issue to the public,

any securities of a building society unless—

(d)	a disclosure statement relating to the securities has first been registered with the Commission by the building society;
and
(e)	when issuing any form of application for the securities, or any form that is to accompany money lodged on deposit or loan prior to the issue of the securities, there is attached to that form a copy of the disclosure statement as registered by the Commission.

Penalty: Division 4 fine or division 4 imprisonment.

(3) For the purposes of this Division, if forms that are the same or substantially the same are issued to the public or are issued to any section of the public, whether selected as clients of the person issuing the forms or in any other manner, each of the forms is to be taken to be issued to the public notwithstanding that each form may be used only by the person to whom it is issued, but forms are not to be taken to be issued to the public—

(a)	by reason only that they are issued to persons whose ordinary business is to buy or sell securities, whether as principal or agent;
or
(b)	in any case or circumstances of a prescribed kind.

(4) Subsections (1) and (2) do not apply—

(a)	in relation to any offer or invitation if a prospectus or statement is registered or is required to be registered by the Commission for the purposes of Division 1 or 6 of Part IV of the Companies (South Australia) Code in relation to the offer or invitation;
or
(b)	in any case or circumstances of a prescribed kind.

(5) The Commission must not register a disclosure statement unless—

(a)	the disclosure statement complies with the requirements of the regulations as to its form and the information and reports to be incorporated in it and is otherwise approved by the Commission as to its form and contents;
(b)	there are also lodged with the Commission copies, verified by statements in writing, of any consents required by this section to the issue of the disclosure statement and of all material contracts referred to in the disclosure statement or, in the case of such a contract not reduced to writing, a memorandum giving full particulars of the contract, verified by a statement in writing;
and
(c)	the Commission is of the opinion that the disclosure statement does not contain any statement or matter that is false in a material particular or is materially misleading in the form or context in which it appears.

(6) A building society in respect of which a disclosure statement has been registered under this section must cause a true copy of the disclosure statement and every document referred to in subsection (5)(b) to be deposited, within seven days after registration of the disclosure statement, at the registered office of the building society and must keep each such copy available for a period of at least six months after registration of the disclosure statement for the inspection of any person without charge.

(7) A building society or other person must not issue a disclosure statement that includes a statement purporting to be made by an expert or to be based on a statement made by an expert unless—

(a)	the expert has consented in writing to the issue of the disclosure statement with that statement included in the form and context in which it is included and has not withdrawn that consent before the disclosure statement is issued;
and
(b)	there appears in the disclosure statement a statement that the expert has given, and has not withdrawn, that consent.

(8) Where a disclosure statement—

(a)	includes any statement—
(i) that is false;

or

(ii) that is misleading in the form or context in which it is included;
or
(b)	omits any matter or thing that is required to be included,

any person who authorized or caused the disclosure statement to be issued is guilty of an offence.

Penalty: Division 4 fine or division 4 imprisonment.

(9) It is a defence to a charge of an offence against subsection (8) if the defendant proves—

(a)	that the statement or omission was immaterial;
(b)	that he or she had reasonable grounds to believe, and did at the time of the issue of the disclosure statement believe, that the statement was not false or misleading or that the omission was immaterial;
or
(c)	in the case of an omission—that the omission was inadvertent.

(10) For the purposes of subsection (8)—

(a)	a statement is to be regarded as part of a disclosure statement if it is contained in any report or memorandum that appears on the face of, or is issued with, the disclosure statement, or is incorporated by reference in the disclosure statement, whether the reference occurs in the disclosure statement or in any other document;
and
(b)	a person is not to be taken to have authorized or caused the issue of a disclosure statement by reason only of the fact that the person consented to its issue as required under subsection (7).

(11) A building society or other person must not issue securities, and an officer of a building society must not authorize or permit securities to be issued, on the basis of a disclosure statement after the expiration of six months from the issue of the disclosure statement.

Civil liability with respect to disclosure statements

42. (1) Subject to this section, where a disclosure statement is issued by a building society or other person, a person who—

(a)	is a director of the building society at the time of the issue of the disclosure statement;
or
(b)	authorized or caused the issue of the disclosure statement,

is liable to pay compensation to any person who subscribes for or purchases securities, or lodges money on deposit or loan, on the faith of the disclosure statement for any loss or damage sustained by reason of—

(c)	any statement in the disclosure statement—
(i) that is false;

or

(ii) that is misleading in the form or context in which it is included;
or
(d)	any omission from the disclosure statement of any matter or thing that was required to be included and of which he or she had knowledge and knew to be material.

(2) Notwithstanding anything in subsection (1), an expert whose consent to the issue of a disclosure statement is required and who has given that consent is not, by reason only of having given that consent, liable under subsection (1) as a person who has authorized or caused the issue of the disclosure statement except in respect of—

(a)	a false or misleading statement in the disclosure statement purporting to be made by him or her as an expert;
or
(b)	an omission from the disclosure statement of any material matter or thing for which he or she is responsible in his or her capacity or purported capacity as an expert.

(3) For the purposes of subsection (1), a statement is to be regarded as part of a disclosure statement if it is contained in any report or memorandum that appears on the face of, or is issued with, the disclosure statement, or is incorporated by reference in the disclosure statement, whether the reference occurs in the disclosure statement or in any other document.

(4) Subject to subsection (5), a person other than a person to whom subsection (6) applies, is not liable under subsection (1) if he or she proves—

(a)	that the disclosure statement was issued without his or her knowledge or consent and—
(i) when first aware of the issue of the disclosure statement, he or she forthwith gave reasonable public notice that it was issued without his or her knowledge;

or

(ii) he or she gave reasonable public notice that the disclosure statement was issued without his or her consent forthwith after it was issued,

as the case may be;

(b)

that, after the issue of the disclosure statement, and before any securities to which the disclosure statement related were issued, he or she, on becoming aware of any false or misleading statement in the disclosure statement, withdrew his or her consent to the issue of the disclosure statement and gave reasonable public notice of the withdrawal and of the reason for the withdrawal;

or

(c)

that—

(i)	as regards every false or misleading statement not purporting to be made on the authority of an expert or of a public official document or statement, he or she had reasonable grounds to believe, and did until the time of the issue of securities believe, that the statement was true and not misleading;
(ii)	as regards every false or misleading statement purporting to be a statement made by an expert or to be based on a statement made by an expert or contained in what purports to be a copy of, or extract from, a report or valuation of an expert—

(A)

it fairly represented the statement, or was a correct and fair copy of,

or extract from, the report or valuation;

and

(B)

he or she had reasonable grounds to believe, and did until the time of the issue of the disclosure statement believe, that the person making the statement was competent to make it and that the person had given the consent required by this Division to the issue of the disclosure statement and had not withdrawn that consent before the issue of the disclosure statement, or, to his or her knowledge, before any, securities to which the disclosure statement related were issued;

and

(iii)           as regards every false or misleading statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or extract from, a public official document, it was a correct and fair representation of the statement or a correct and fair copy of, or extract from, the document.

(5) Subsection (4) does not apply in the case of a person who is liable, as a person who authorized or caused the issue of a disclosure statement by giving a consent required under this Division, in respect of a false or misleading statement purporting to have been made by him or her as an expert.

(6) A person who, apart from this subsection, would under subsection (1) be liable, as a person who authorized or caused the issue of a disclosure statement by giving a consent required under this Division, in respect of a false or misleading statement purporting to be made by him or her as an expert is not so liable if he or she proves—

(a)	that, having given his or her consent under this Division to the issue of the disclosure statement, he withdrew it in writing before the disclosure statement was issued;
(b)	that, after the disclosure statement was issued and before any securities to which the disclosure statement related were issued, he or she, on becoming aware of the false or misleading statement, withdrew his or her consent in writing and gave reasonable public notice of the withdrawal and of the reasons for the withdrawal;
or
(c)	that he or she was competent to make the statement and had reasonable grounds to believe, and did until the time of the issue of securities to which the disclosure statement related believe, that the statement was true and not misleading.

(7) Where—

(a)	a disclosure statement contains the name of a person as an officer of the building society and the person has not authorized or consented to the issue of the disclosure statement;
or
(b)	the consent of a person is required under this Division to the issue of a disclosure statement and the person has not given that consent or has withdrawn it before the issue of the disclosure statement,

the officers of the building society, except any without whose knowledge or consent the disclosure statement was issued, and any other person who authorized or caused the issue of the disclosure statement are jointly and severally liable to indemnify the person so named or whose consent was so required against all damages, costs and expenses to which he or she may be made liable—

(c)	by reason of his or her name having been so inserted in the disclosure statement;
(d)	by reason of the inclusion in the disclosure statement of a statement purporting to be made by him or her as an expert;
or
(e)	in defending any action or other legal proceeding brought against him or her by reason of his or her name having been so inserted in the disclosure statement or the inclusion in the disclosure statement of such a statement.

Documents acknowledging deposits or loans pursuant to public offer, etc.

43. (1) Subject to this section, where pursuant to—

(a)	an offer made to the public to accept money on deposit or loan;
or
(b)	an invitation issued to the public to lodge money on deposit or loan,

a building society accepts money on deposit or loan from a person, the building society must,

within two months after accepting the money, issue to that person a document that—

(c)	acknowledges, evidences or constitutes an acknowledgment of the indebtedness of the building society in respect of that deposit or loan;
and
(d)	complies with the requirements of the regulations.

(2) Subsection (1) does not apply—

(a)	in relation to any offer or invitation if a prospectus or statement is registered or is required to be registered by the Commission for the purposes of Division 1 or 6 of Part IV of the Companies (South Australia) Code in relation to the offer or invitation;
or
(b)	in any case or circumstances of a prescribed kind.

Issuing of certain securities at a discount prohibited

44. A building society must not issue permanent shares or other securities of a prescribed class at a discount.

Securities other than permanent shares to be fully paid-up and in consideration of cash

45. A building society must not issue any securities other than permanent shares as partly paid-up and except in consideration of the payment of cash.

Regulations governing offers, issues, etc., of securities to public

46. (1) The regulations may regulate or make provision with respect to securities the subject of any public offer, invitation or issue by a building society and the making of any such offer, invitation or issue, and, without limiting the effect of the foregoing, may regulate or make provision with respect to—

(a)	the form and contents of disclosure statements;
(b)	the publication and contents of notices, advertisements and reports relating to such securities;
(c)	trust deeds relating to or securing such securities;
(d)	information, records or returns to be kept or furnished in relation to such securities and the holders of such securities.

(2) The regulations may prescribe penalties, not exceeding a division 4 fine or division 4 imprisonment, for breach of, or non-compliance with, a regulation made pursuant to this section or for the purposes of this Division.

Power of Commission to exempt

47. (1) The Commission may, by instrument in writing, exempt a person, as specified in the instrument and subject to such conditions (if any) as are specified in the instrument, from compliance with all or any of the provisions of this Division (other than section 44 or 45) or any regulations made for the purposes of or pursuant to this Division.

(2) Without limiting the generality of subsection (1), an exemption under that subsection may relate to particular securities or to securities included in a class of securities.

(3) A person must not contravene or fail to comply with a condition to which an exemption under subsection (1) is subject.

(4) Where a person has contravened or failed to comply with a condition to which an exemption under subsection (1) is subject, the Court may, on the application of the Commission, order the person to comply with the condition.

(5) The Commission may, by instrument in writing, declare that a provision of this Division (other than section 44 or 45), or a regulation made for the purposes of or pursuant to this Division, has effect in its application to or in relation to a particular person or particular persons—

(a)	in a particular case;
or
(b)	in relation to particular securities or securities included in a particular class of securities,

as if the provision or regulation were omitted or modified or varied in a manner specified in the instrument and, where such a declaration is made, that provision or regulation has effect accordingly.

(6) The Commission must cause a copy of an instrument executed under this section to be published in the Gazette, but failure of the Commission to do so does not affect the validity of the instrument.

DIVISION III—PERMANENT SHARES

Application of Division

48. This Division applies only in relation to permanent shares in a building society.

Allotment of shares otherwise than for cash

49. (1) A building society must not allot shares as fully or partly paid-up otherwise than in consideration of payment in cash unless the building society has obtained a report from an expert, signed by the expert and stating—

(a)	what, in his or her opinion, is the money value at the time of the signing of the report of the consideration given in respect of the shares;
(b)	whether or not, in his or her opinion, the consideration is fair and reasonable as at that time and the reasons for that opinion;
(c)	particulars of any relationship that he or she has with the building society or an associate of the building society;
(d)	particulars of any pecuniary or other interest that he or she has that could reasonably be regarded as being capable of affecting his or her ability to give an unbiased report;
and
(e)	particulars of any fee or pecuniary or other benefit, whether direct or indirect, that he or she has received, or will or may receive, for or in connection with the making of the report.

(2) A copy of a report under subsection (1) must—

(a)	if a disclosure statement is required to be issued under this Part in respect of the shares in question—be incorporated by the building society in the disclosure statement;
or
(b)	in any other case—be lodged with the Commission by the building society not less than seven days before the shares are allotted.

(3) A building society must, if it has obtained the opinions of more than one expert for the purposes of this section, append to any report that is dealt with in accordance with subsection (2) a statement setting out, in relation to each of those experts (other than the one who signed the report)—

(a)	the name of the expert;
and
(b)	particulars of the opinions (if any) expressed by the expert on the matters on which an expert’s opinion is required for the purposes of this section.

Power to exempt in relation to non-cash consideration

50. (1) The Commission may, by notice in writing, exempt a building society, conditionally or unconditionally, from a requirement of section 49.

(2) The Commission may, on non-compliance with a condition of an exemption under this section, by instrument in writing, revoke the exemption.

Differences in calls, reserve liability, etc.

51. (1) A building society may, if so authorized by its rules—

(a)	make arrangements on the issue of shares for varying the amounts and times of payment of calls as between shareholders;
and
(b)	accept from a member the whole or a part of the amount remaining unpaid on any shares although no part of that amount has been called up.

(2) A building society may, by special resolution, determine that any portion of its share capital that has not been already called up is not capable of being called up except in the event and for the purposes of the building society being wound up, and in that event that portion of the building society’s share capital is not capable of being called up except in the event and for the purposes of the building society being wound up, but no such resolution prejudices any rights acquired by a person before the passing of the resolution.

Calls and effect of non-compliance with calls on shares

52. (1) Calls on shares in a building society must be so made that they are payable not less than

14 days from the day on which the call is made, and no subsequent call may be made until after

the expiration of seven days from the day on which the call made immediately before it is payable.

(2) When a call is made, notice of the amount of the call, of the day when it is payable and of the place for payment must, not less than seven days before that day, be sent by post to the holder of shares on which the call is made.

(3) Where a call on a share is not paid on or before the day for its payment, the shareholder is not entitled—

(a)	to a dividend on the share;
or
(b)	to a vote in any meeting of members of the building society.

(4) Where a call on a share is unpaid at the expiration of 14 days after the day for its payment, the share may be forfeited by resolution of the board of the building society.

Sale of shares forfeited for non-payment of call

53. (1) Shares forfeited by a building society for non-payment of a call must be offered for sale by auction not more than six weeks after the date of their forfeiture.

(2) The sale must, not less than 14 and not more than 21 days before the day appointed for the sale, be advertised on two separate days in a newspaper circulating generally in the State and, where the building society is carrying on business as a building society in another State or Territory of the Commonwealth, on two separate days in a newspaper circulating generally in that State or Territory.

(3) Where a sale is not held owing to error or inadvertence, the sale, if it is held in due course as soon as practicable after the discovery of the error or inadvertence, is not invalid.

(4) At any such sale, a share forfeited for non-payment of any call may, if the building society in accordance with its rules or by ordinary resolution so determines, be offered for sale and sold credited as paid up to the sum of the amount paid up on the share at the time of forfeiture and the amount of the call and the amount of any other calls becoming payable on or before the date of the sale.

(5) The proceeds of the sale must be applied in payment of—

(a)	first, the expenses of the sale;
(b)	second, any expenses necessarily incurred in respect of the forfeiture;
and
(c)	third, the calls then due and unpaid,

and the balance (if any) must be paid to the member whose share has been so sold on delivery to

the building society of the share certificate that relates to the forfeited share.

(6) The board of the building society may, in the case of a share advertised for sale as forfeited for non-payment of a call, fix a reserve price not exceeding the sum of the amount of the call due and unpaid on the share at the time of forfeiture and the amount of any other calls becoming payable on or before the date of the sale.

(7) If a bid at least equal to the reserve price so fixed is not made for the share, the share may be withdrawn from sale.

(8) A share so withdrawn from sale or a share for which no bid is received at the sale must be held by the board in trust for the building society and must be disposed of in such manner as the building society, in accordance with its rules or by resolution, determines.

or

(ii) where the relevant person is a body corporate—a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;

(i) where the relevant person is a natural person—an order prohibiting that person from leaving the State without the consent of the Court.

(2) Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

(3) Where the Commission makes an application to the Court for the making of an order under subsection (1), the Court may not require the Commission or any other person, as a condition of granting an interim order under subsection (2), to give undertakings as to damages.

(4) Where the Court has made an order under this section, the Court may, on application by the Commission or by any person affected by the order, make a further order rescinding or varying the first mentioned order.

(5) An order made under subsection (1) or (4) may be expressed to operate for a period specified in the order or until the order is rescinded by a further order under subsection (1) or (4).

Injunctions

206. (1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of this Act, the Court may, on the application of—

(a)	the Commission;
or
(b)	any person whose interests have been, are or would be affected by the conduct,

grant an injunction restraining the first mentioned person from engaging in the conduct and, if in

the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

(2) Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of—

(a)	the Commission;
or
(b)	any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing,

grant an injunction requiring the first mentioned person to do that act or thing.

(3) Where an application is made to the Court for an injunction under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1) pending the determination of the application.

(4) The Court may rescind or vary an injunction granted under subsection (1), (2) or (3).

(5) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the Court to grant the injunction may be exercised—

(a)	if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
or
(b)	if it appears to the Court that, in the event that an injunction is not granted, it is likely the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind.

(6) Where an application is made to the Court for a grant of an injunction requiring a person to do a particular act or thing, the power of the Court to grant the injunction may be exercised—

(a)	if the Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
or
(b)	if it appears to the Court that, in the event that an injunction is not granted, it is likely the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first mentioned person refuses or fails to do that act or thing.

(7) Where the Commission makes an application to the Court for the granting of an injunction under this section, the Court may not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

(8) Where the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

Examination of persons concerned with building societies or foreign building societies

207. (1) In this section, a reference, in relation to a building society or foreign building society, to a prescribed person is to be construed as a reference to an official manager, liquidator or provisional liquidator of the building society or foreign building society or to any other person authorized by the Commission to make applications under this section or to make an application under this section in relation to that building society or foreign building society.

(2) Where it appears to the Commission or to a prescribed person that—

(a)	a person who has taken part or been concerned in the formation, management, administration or winding up of, or has otherwise taken part or been concerned in the affairs of, a building society or foreign building society has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that building society or foreign building society;
or
(b)	a person may be capable of giving information in relation to the formation, management, administration or winding up of, or otherwise in relation to affairs of, a building society or foreign building society,

the Commission or prescribed person may apply to the Court for an order under this section in

relation to the person.

(3) Where an application is made under subsection (2) in relation to a person, the Court may, if it thinks fit, order that the person attend before the Court on a day and at a time to be fixed by the Court to be examined on oath or affirmation on any matters relating to the formation, management, administration or winding up of, or otherwise relating to affairs of, the building society or foreign building society concerned.

(4) An examination under this section must be held in public except to such extent (if any) as the Court considers that, by reason of special circumstances, it is desirable to hold the examination in private.

(5) The Court, on making an order for an examination, or at any later time, on the application of any person concerned, may give such directions as to the matters to be inquired into, and, subject to subsection (4), as to the procedure to be followed (including, in the case of an examination in private, directions as to the persons who may be present), as it thinks fit.

(6) A person who is ordered under subsection (3) to attend before the Court must not, without reasonable excuse—

(a)	fail to attend as required by the order;
or
(b)	fail to attend from day to day until the conclusion of the examination.

Penalty: Division 5 fine or division 5 imprisonment.

(7) A person attending before the Court for examination pursuant to an order made under

subsection (3) must not refuse or fail to take an oath or make an affirmation.

Penalty: Division 5 fine or division 5 imprisonment.

(8) A person attending before the Court for examination pursuant to an order made under subsection (3) must not refuse or fail to answer a question that he or she is directed by the Court to answer.

Penalty: Division 5 fine or division 5 imprisonment.

(9) A person attending before the Court for examination pursuant to an order made under subsection (3), if directed by the Court to produce any books in his or her possession or under his or her control relevant to the matters on which he or she is to be, or is being, examined, must not refuse or fail to comply with the direction.

Penalty: Division 5 fine or division 5 imprisonment.

(10) Where the Court so directs a person to produce any books and the person has a lien on the books, the production of the books does not prejudice the lien.

(11) A person attending before the Court for examination pursuant to an order made under

subsection (3) must not make a statement that is false or misleading in a material particular.

Penalty: Division 5 fine or division 5 imprisonment.

(12) A person is not excused from answering a question put to him or her at an examination held pursuant to an order made under subsection (3) on the ground that the answer might tend to incriminate him or her but, where the person claims, before answering the question, that the answer might tend to incriminate him or her, the answer is not admissible in evidence against him or her in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer.

(13) The Court may order the questions put to a person and the answers given by him or her at an examination under this section to be recorded in writing and may require him or her to sign that written record.

(14) Subject to subsection (12), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules of the Court, may be used in evidence in any legal proceedings against the person.

(15) An examination under this section may, if the Court so directs and subject to the rules of the Court, be held before such other court as is specified by the Court and the powers of the Court under this section may be exercised by that other court.

(16) A person ordered to attend before the Court or another court for examination under this section may, at his or her own expense, employ a solicitor, or a solicitor and counsel, and the solicitor or counsel, as the case may be, may put to him or her such questions as the Court, or the other court, as the case may be, considers just for the purpose of enabling him or her to explain or qualify any answers or evidence that he or she has given.

(17) The Court or another court before which an examination under this section takes place may, if it thinks fit, adjourn the examination from time to time.

(18) Where the Court that made the order under subsection (3) for an examination is satisfied that the order for the examination was obtained without reasonable cause, the Court may order the whole or any part of the costs incurred by the person ordered to be examined to be paid by the applicant or by any other person who, with the consent of the Court, took part in the examination.

Orders against persons concerned with building societies or foreign building societies

208. (1) In this section, a reference to a prescribed person, in relation to a building society or foreign building society, is to be construed as a reference to an official manager, liquidator or provisional liquidator of the building society or foreign building society or to any other person authorized by the Commission to make applications under this section or to make an application under this section in relation to that building society or foreign building society.

(2) Subject to subsection (3), where, on application by the Commission or a prescribed person, the Court is satisfied that—

(a)	a person is guilty of fraud, negligence, default, breach of trust or breach of duty in relation to a building society or foreign building society;
and
(b)	the building society or foreign building society has suffered, or is likely to suffer, loss or damage as a result of the fraud, negligence, default, breach of trust or breach of duty,

the Court may make such order or orders as it thinks appropriate against or in relation to the person (including either or both of the orders specified in subsection (4)) and may so make an order against or in relation to a person notwithstanding that the person may have committed an offence in respect of the matter to which the order relates.

(3) The Court may not make an order against a person under subsection (2) unless the Court has given the person the opportunity—

(a)	to give evidence personally;
(b)	to call witnesses to give evidence;
(c)	to adduce other evidence in relation to the matters to which the application relates;
and
(d)	to employ, at his or her own expense, a solicitor, or a solicitor and counsel, to put to him or her, or to any other witness, such questions as the Court considers just for the purpose of enabling him or her to explain or qualify any answers or evidence that he or she has given.

(4) The orders that may be made under subsection (2) against a person include—

(a)	an order directing the person to pay money or transfer property to the building society or foreign building society;
and
(b)	an order directing the person to pay to the building society or foreign building society the amount of the loss or damage.

(5) Nothing in this section prevents any person from instituting any other proceedings in relation to matters in respect of which an application may be made under this section.

Civil proceedings not to be stayed

209. No civil proceedings under this Act may be stayed by reason only that the proceeding discloses, or arises out of, the commission of an offence.

Power to grant relief

210. (1) If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity by virtue of which he or she is such a person, it appears to the court before which the proceedings are taken that the person is or may be liable in respect of the negligence, default or breach but has acted honestly and, having regard to all the circumstances of the case, including those connected with his or her appointment, ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from the liability on such terms as the court thinks fit.

(2) Where a person to whom this section applies has reason to apprehend that any claim will or might be made against him or her in respect of any negligence, default, breach of trust or breach of duty in a capacity by virtue of which he or she is such a person, he or she may apply to the Court for relief, and the Court has the same power to grant relief as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought.

(3) This section applies to a person who is—

(a)	an officer of a building society or foreign building society;
(b)	an auditor of a building society or foreign building society, whether or not he or she is an officer of the building society or foreign building society;
(c)	an expert in relation to a matter in relation to which the civil proceeding has been taken or the claim will or might arise;
or
(d)	a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty in relation to a building society or foreign building society.

(4) In this section—

"officer", in relation to a building society or foreign building society, has the meaning assigned

to that term by section 3 and includes—

(a)	an employee of the building society or foreign building society;
(b)	a receiver, or receiver and manager, of property of the building society or foreign building society;
(c)	an official manager or deputy official manager of the building society or foreign building society;
(d)	a liquidator of the building society or foreign building society;
and
(e)	a trustee or other person administering a compromise or arrangement made between the building society or foreign building society and another person or other persons.

Building societies may act as agents of Aboriginal Loans Commission

211. (1) A building society may, by agreement with the Aboriginal Loans Commission, act as an agent of that Commission.

(2) The terms and conditions of an agreement under subsection (1) must be approved by the Commission.

(3) In this section—

"the Aboriginal Loans Commission" means the Aboriginal Loans Commission established under

the Aboriginal Loans Commission Act 1974 of the Commonwealth.

Powers in relation to money of members who have died or become of unsound mind

212. (1) Where a member of a building society dies, the building society may, at its discretion and without production of probate of the will, or letters of administration of the estate, of the deceased, apply any money held by the building society that was deposited or paid up on a withdrawable share by the deceased in one or both of the following ways:

(a)	in payment of the funeral expenses and just debts of the deceased;
(b)	in payment to the executor of the will of the deceased or to any person or persons who are, in the opinion of the building society, entitled to the money,

but the total amount applied under this subsection in relation to any one deceased person must not

exceed the prescribed maximum.

(2) Where a member of a building society becomes of unsound mind and it appears to the building society that money held by the building society that was deposited or paid up on a withdrawable share by the member is reasonably required for the maintenance of the member, or the maintenance, education or advancement of a member of his or her family, the building society may apply the money for those purposes, but the total amount applied under this subsection in relation to any one member must not exceed the prescribed maximum.

(3) No action lies against a building society in respect of any act, or failure to act, under this

section.

Limitation of doctrine of ultra vires

213. (1) A transaction to which a building society or a foreign building society is a party is not invalid as against another party to the transaction by reason of any deficiency in the capacity of the building society or foreign building society to enter into, or carry out, the transaction unless that other party to the transaction has actual notice of the deficiency.

(2) A building society or foreign building society is empowered to carry out a transaction that would, but for subsection (1), be invalid.

(3) This section does not prejudice an action by a member of a building society or foreign building society to restrain the building society or foreign building society from entering into or carrying out a transaction that lies beyond the powers conferred on the building society or foreign building society by this Act, any other Act or law or its rules.

Abolition of doctrine of constructive notice

214. A person dealing with a building society or foreign building society, or with an agent of a building society or foreign building society, is not to be presumed to have notice of the rules of the building society or foreign building society, or of any other document registered by or lodged with the Commission in relation to the building society or foreign building society.

Evidentiary provision

215. (1) In any legal proceedings, a document that appears to be a certificate of registration, certificate of incorporation or other certificate issued by the Commission pursuant to this Act, or a certified copy of such a certificate, is, in the absence of proof to the contrary, to be accepted as proof of the matters stated in the certificate or certified copy.

(2) In any legal proceedings, a document—

(a)	that appears to be—
(i) a copy of the rules of a building society or foreign building society;

or

(ii) a copy of, or extract from, any of the books or other records of a building society or foreign building society;
and
(b)	is apparently endorsed with a certificate of its authenticity by the Commission or the secretary of the building society or foreign building society,

is, in the absence of proof to the contrary, to be accepted as such a copy or extract.

(3) In any legal proceedings, a document apparently bearing the common seal of a building society or foreign building society is, in the absence of proof to the contrary, to be presumed to have been duly executed by the building society or foreign building society.

General offences and penalties

216. (1) If a person contravenes or fails to comply with—

(a)	a provision of this Act for which no penalty is specifically provided;
or
(b)	in the case of a building society or foreign building society, a rule of the building society or foreign building society,

the person is guilty of an offence.

Penalty: Division 6 fine.

(2) If a building society, foreign building society or other person refuses or neglects to furnish any return, information or document lawfully required by the Commission, the Restructuring Review Committee or any other person under this Act, the building society, foreign building society or other person is guilty of an offence.

Penalty: Division 6 fine.

(3) If a person is guilty of an offence against a provision of this Act other than this section and no penalty is specifically provided for that offence, the person is liable to a penalty not exceeding a division 6 fine.

(4) Where a person is convicted of an offence against this Act and after that conviction the act or omission of the person that constituted the offence continues, the person is guilty of a further offence and liable to an additional penalty for each day on which the act or omission continues of an amount not exceeding one-tenth of the maximum penalty for the offence of which the person was convicted.

(5) For the purposes of subsection (3), an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed.

Default extended to officers

217. Where a building society or foreign building society is guilty of an offence against this Act, each officer of the building society or foreign building society is guilty of an offence and liable to the same penalty as is prescribed for the principal offence.

General defence

218. In proceedings for an offence against this Act, it is a defence if the defendant proves that in the circumstances of the case there was no failure on the defendant’s part to take reasonable care to avoid commission of the offence.

Proceedings for offences

219. (1) An offence against this Act that is not punishable by imprisonment is a summary

offence.

(2) An offence against this Act that is punishable by imprisonment is, subject to subsection (3), an indictable offence.

(3) Where—

(a)	proceedings for an offence against this Act that is punishable by imprisonment are brought in a court of summary jurisdiction;
and
(b)	the prosecutor requests the court to hear and determine the proceedings,

the offence is to be taken to be a summary offence and must be heard and determined as such.

(4) A court of summary jurisdiction may not—

(a)	impose, in respect of any one offence against this Act, a period of imprisonment exceeding two years;
or
(b)	impose, in respect of offences against this Act, cumulative periods of imprisonment that, in aggregate, exceed five years.

(5) Nothing in this section renders a person liable to be punished more than once in respect of the same offence.

(6) A prosecution for an offence against this Act—

(a)

may be commenced—

(i)	by the Commission;
(ii)	by an officer or employee of the Commission;

or

(iii) with the consent of the Minister, by any other person;
and
(b)	must be commenced within three years after the date on which the offence is alleged to have been committed or such further period as the Minister may, in a particular case, allow.

(7) A document apparently signed by the Minister and stating—

(a)	that the Minister consents to a particular prosecution;
or
(b)	that the Minister allows a specified extension of the period for commencing a particular prosecution,

is to be accepted, in the absence of proof to the contrary, as proof of the fact so stated.

(8) In any proceedings for an offence against this Act, an allegation in the complaint that the complainant is an officer or employee of the Commission is, in the absence of proof to the contrary, to be accepted as proved.

Regulations

220. (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act.

(2) Without limiting the generality of subsection (1), those regulations may—

(a)	prescribe any form for the purposes of this Act;
(b)	prescribe the information to be kept in any register that the Commission is required to keep under this Act;
(c)	prescribe the manner in which a rate of interest is to be calculated for the purposes of this Act;
(d)	prescribe, and provide for the recovery of, fees in respect of an application under this Act;
(e)	limit the charges that may be made by a building society in respect of the granting of a loan by the building society, or for any work done by a building society in relation to the granting of a loan;
(f)	require building societies, or building societies of a prescribed class, to keep their offices open to the public throughout prescribed periods;
(g)	make any provision in relation to the administration of a building society by an administrator appointed under this Act, or the winding up of a building society;
(h)	make any provision in relation to or regulate the financial activities or monetary policies of, or the holding of securities in, building societies or their subsidiaries, foreign building societies or associations;

(i) limit the amount that a building society may subscribe to an association;

(j)	provide for the imposition and recovery of fees for the late lodgment of returns or reports required under this Act;
and
(k)	prescribe penalties, not exceeding a division 6 fine, for breach of, or non-compliance with, any regulation.

(3) A regulation under this Act—

(a)	may be of general or limited application;
(b)	may leave a matter in respect of which regulations may be made to be determined according to the discretion of the Minister or the Commission;
and
(c)	may make provision for facilitating the proof of matters requiring proof for the purposes of the regulations.

SCHEDULE 1

Repeal and Transitional Provisions

1. The Building Societies Act, 1975, is repealed.

2. (1) Subject to this Act, a building society or association registered under the repealed Act immediately before the commencement of this Act continues in existence as if it were a building society or association registered under this Act.

(2) Subject to this Act, a register kept by the Commission under the repealed Act, continues as a register kept by the Commission under this Act.

(3) Subject to this Act, a certificate or document issued or registered by, or filed or lodged with, the Commission under the repealed Act has effect as if it were a certificate or document issued or registered by, or filed or lodged with, the Commission under this Act.

(4) Subject to this Act, the Building Societies Advisory Committee established under Division II of Part II is the same committee and continues with the same membership as the committee of that name established under Division II of Part II of the repealed Act.

(5) An approval given by the Commission under Division IV of Part III of the repealed Act authorizing a building society to use a name other than its registered name has effect as if it were an approval under Division VII of Part III of this Act.

(6) A notice issued by the Minister and published in the Gazette under section 27 of the repealed Act has effect as if it were a notice so issued and published under Division I of Part V of this Act.

(7) A guarantee given under Division V of Part V of the repealed Act has effect as if it were a guarantee under Division VII of Part V of this Act.

(8) The Commission may, by notice published in the Gazette, exempt—

(a)	building societies, foreign building societies or associations generally;
(b)	a specified class of building societies, foreign building societies or associations;
or
(c)	a specified building society, foreign building society or association,

from any provisions of this Act.

(9) An exemption under this clause—

(a)	may be conditional or unconditional;
(b)	may be limited in its effect to a specified period.

(10) The Commission may, by notice in the Gazette, vary or revoke an exemption under this clause.

(11) A decision of the Commission to issue, refuse, vary or revoke an exemption, or as to the conditions or period of effect of an exemption, under this clause is final.

(12) An exemption may not be granted under this clause after the expiration of 18 months from the commencement of this Act and, if an exemption under this clause is not limited in its effect to a period expiring before the expiration of that period of 18 months, the exemption ceases to have effect on the expiration of that period of 18 months.

(13) The Acts Interpretation Act, 1915, applies, except to the extent of any inconsistency with the provisions of this schedule, to the repeal effected by clause 1.

SCHEDULE 2

Order of Priority of Registrable Charges

1. (1) A registered charge on property of a building society has priority over—

(a)	a subsequent registered charge on the property, unless the subsequent registered charge was created before the creation of the prior registered charge and the chargee in relation to the subsequent registered charge proves that the chargee in relation to the prior registered charge had notice of the subsequent registered charge at the time when the prior registered charge was created;
(b)	an unregistered charge on the property created before the creation of the registered charge, unless the chargee in relation to the unregistered charge proves that the chargee in relation to the registered charge had notice of the unregistered charge at the time when the registered charge was created;
and
(c)	an unregistered charge on the property created after the creation of the registered charge.

(2) A registered charge on property of a building society is postponed to—

(a)	a subsequent registered charge on the property, where the subsequent registered charge was created before the creation of the prior registered charge and the chargee in relation to the subsequent registered charge proves that the chargee in relation to the prior registered charge had notice of the subsequent registered charge at the time when the prior registered charge was created;
and
(b)	an unregistered charge on the property created before the creation of the registered charge, where the chargee in relation to the unregistered charge proves that the chargee in relation to the registered charge had notice of the unregistered charge at the time when the registered charge was created.

2. An unregistered charge on the property of a building society has priority over—

(a)	a registered charge on the property that was created after the creation of the unregistered charge and does not have priority over the unregistered charge under clause 1;
and
(b)	another unregistered charge on the property created after the first mentioned unregistered charge.

3. (1) Except as provided by the succeeding subclauses of this clause, any priority accorded by this schedule to a charge over another charge does not extend to any liability that, at the priority time in relation to the first mentioned charge, is not a present liability.

(2) Where a registered charge on property of a building society secures—

(a)	a present liability and a prospective liability of an unspecified amount;
or
(b)	a prospective liability of an unspecified amount,

any priority accorded by this schedule to the charge over another charge of which the chargee in relation to the first mentioned charge does not have actual knowledge extends to the prospective liability, whether the prospective liability became a present liability before or after the registration of the first mentioned charge.

(3) Where a registered charge on property of a building society secures—

(a)	a present liability and a prospective liability up to a specified maximum amount;
or
(b)	a prospective liability up to a specified maximum amount,

and the notice lodged with the Commission under section 87 or 88 in relation to the charge sets out the nature of the prospective liability and the amount so specified, then any priority accorded by this schedule to the charge over another charge extends to any prospective liability secured by the first mentioned charge to the extent of the maximum amount so specified, whether the prospective liability became a present liability before or after the registration of the first mentioned charge and notwithstanding that the chargee in relation to the first mentioned charge had actual knowledge of the other charge at the time when the prospective liability became a present liability.

(4) Where—

(a)	a registered charge on property of a building society secures—
(i) a present liability and a prospective liability up to a specified maximum amount;

or

(ii) a prospective liability up to a specified maximum amount,

but the notice lodged with the Commission under section 87 or 88 in relation to the charge does not set out

the nature of the prospective liability or the maximum amount so specified;

or

(b)

a registered charge on property of a building society secures a prospective liability of an unspecified amount,

the following provisions have effect:

(c)	any priority accorded by this schedule to the charge over another charge of which the chargee in relation to the first mentioned charge has actual knowledge extends to any prospective liability secured by the first mentioned charge that had become a present liability at the time when the chargee in relation to the first mentioned charge first obtained actual knowledge of the other charge;
and
(d)	any priority accorded by this schedule to the charge over another charge of which the chargee in relation to the first mentioned charge has actual knowledge extends to any prospective liability secured by the first mentioned charge that became a present liability, as the result of the making of an advance, after the time when the chargee in relation to the first mentioned charge first obtained actual knowledge of the other charge if, at that time, the terms of the first mentioned charge required the chargee in relation to that charge to make the advance after that time, and so extends to that prospective liability whether the advance was made before or after the registration of the first mentioned charge and notwithstanding that the chargee in relation to the first mentioned charge had actual knowledge of the other charge at the time when the advance was made.

4. Where, by virtue of the definition of "priority time" in clause 7, a registered charge has two or more priority times each of which relates to a particular liability secured by the charge, each of those liabilities is, for the purposes of this schedule, to be taken to be secured by a separate registered charge the priority time of which is the priority time of the first mentioned registered charge that relates to the liability concerned.

5. A reference in this schedule to a person having notice of a charge includes a reference to the person having constructive notice of the charge.

6. In this schedule—

(a)	a reference to a prior registered charge in relation to another registered charge is a reference to a charge the priority time of which is earlier than the priority time of the other charge;
and
(b)	a reference to a subsequent registered charge in relation to another registered charge is a reference to a charge the priority time of which is later than the priority time of the other registered charge.

7. In this schedule—

"priority time", in relation to a registered charge, means—

(a)	except as provided by paragraph (b) or (c)—the time and date appearing in the Register in relation to the charge, being a time and date entered in the Register pursuant to section 89;
(b)	where a notice has been lodged under section 88 in relation to a charge on property, being a charge that, at the time when the notice was lodged, was already registered under Division VI of Part IV—the earlier or earliest time and date appearing in the Register in relation to the charge, being a time and date entered in the Register pursuant to section 89;
and
(c)	to the extent that the charge has effect as varied by a variation notice of which was required to be lodged with the Commission under section 93(2)—the time and date entered in the Register in relation to the charge pursuant to section 89(12):

"registered charge" means a charge that is registered under Division VI of Part IV:

"unregistered charge" means a charge that is not registered under Division VI of Part IV, but does not include a charge

that is not registrable.

APPENDIX

Divisional Penalties

At the date of assent to this Act divisional penalties are, as provided by section 28a of the Acts Interpretation Act, 1915, as follows:

Division	Maximum	Maximum
imprisonment	fine

1	15 years	$60 000
2	10 years	$40 000
3	7 years	$30 000
4	4 years	$15 000
5	2 years	$8 000
6	1 year	$4 000
7	6 months	$2 000
8	3 months	$1 000

9	-	$500
10	-	$200
11	-	$100
12	-	$50

Note: This appendix is provided for convenience of reference only.