Building Societies Act Amendment Act 1976 (No. 2) (Qld)

468 Qn^ kreersfi tr ANNO VICESIMO QUINTO ELIZABETHAE SECUNDAE REGINAE No. 49 of 1976 An Act to amend the Building Societies Act 18861976 in certain particulars [ASSENTED TO 27TH SEPTEMBER, 1976] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Building Societies Act Amendment Act 1976 (No. 2). (2) The Building Societies Act 1886-1976 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Building Societies Act 1886-1976. 2. Amendment of s. 22F. Section 22F of the Principal Act is amended by adding at the end of subsection (2) the following symbol and paragraph:- 14

Building Societies Act Amendment Act (No. 2) 1976, No. 49 469 (d) an interest in any dealing between the Registered Society and a director or his associate- (i) who is a solicitor or conveyancer within the meaning of the Queensland Law Society Act 1952-1974 and bona fide carries on practice as such if such dealing is in respect of legal work performed by the director or his associate for and on behalf of the Society; or (ii) who is a registered valuer within the meaning of the Valuers Registration Act 1965-1974 and bona fide carries on practice as such if such dealing is in respect of valuation work performed by the director or his associate for and on behalf of the Society ". 3. New s. 22N. The Principal Act is amended by inserting after section 22M the following section:- "22N. Reserve fund . (1) On and from 1 July 1981 or such other date as the Governor in Council prescribes for the purposes of this .section by Order in Council every Permanent Society shall, during the whole of each financial year, maintain a reserve fund separate and apart from the reserve account referred to in section 33D amounting to not less than 0.25 per centum or such other percentage as the Governor in Council prescribes by Order in Council of the amount of the aggregate liabilities of the Society as at the beginning of the financial year last preceding the financial year during which the reserve fund is required to be maintained. Such lastmentioned. Order in Council may be made to apply in respect of Permanent Societies generally or in respect of one or more Societies and to apply in respect of financial years generally or in respect of one or more financial years. (2) Any amount maintained in a reserve fund pursuant to subsection (1)- (a) shall not be distributed amongst members of the Permanent Society except upon the winding up of the Society; and (b) may be applied to any other purpose to which the capital of the Permanent Society may properly be applied.". 4. Repeal of and new s. 23A. The Principal Act is amended by repealing section 23A and substituting the following section:- " 23A. Restrictions concerning interest on loans. (1) A Registered Society shall not charge and shall not be entitled to any interest in respect of a loan approved by it until some part of the loan has been actually advanced by it to or on account of the borrower for a purpose for which the loan was approved. (2) The Governor in Council may by Order in Council prescribe a rate per centum as the maximum rate of interest that a Registered Society is entitled to charge on moneys advanced by it and may, in the Order specify the rests at which interest at the prescribed rate shall be calculated. (3) At any time when a maximum rate of interest is prescribed pursuant to subsection (2)- (a) a Registered Society shall not charge interest on moneys advanced by it at a rate in excess of the prescribed rate;

470 Building Societies Act Amendment Act (No. 2) 1976, No. 49 (b) save as is otherwise provided by this section, a Registered Society shall not seek, accept, demand or receive, directly or indirectly, from a person to whom moneys are advanced by the Society any commission , fee, bonus or reward for or in connexion with the advances if the total amount of any such commission, fee, bonus or reward together with the amount of the interest at the applicable rate paid or payable by the borrower to the Society exceed, or would exceed, the amount of the interest on such advances that would have been paid, or would be payable, by the borrower if such interest had been or were calculated at the prescribed rate at the relevant time or times. (4) It is lawful for a Registered Society to. charge and recover from a prospective borrower a fee fixed by the Society to cover the actual cost.' of processing an application by, the prospective borrower for an advance by the Society of certain moneys, such fee not to exceed three-quarters of one per centum of the amount of the advance applied for and in addition to charge and recover from the borrower costs, fees and charges- (a) paid or payable by the Society in, respect of the preparation by a solicitor or conveyancer of documents properly evidencing or securing the contract for the advance; (b) assessed and paid or assessed and payable (whichever is the less ) by the Society in respect of stamp duties or registration fees payable under any Act in respect of the advance or in respect of documents relating (whether wholly or in part) thereto and in the latter case, attributable to the advance in question; (c) paid by the Society in respect of a valuation obtained in connexion with the advance in question, but it shall not be lawful for a Registered Society, directly or indirectly, to seek, accept, demand or receive any commission, fee, bonus or reward for or in connexion with any payment as specified in paragraph (a), (b) or (c) from the person to whom such a payment has been made or is payable. (5) Where the rules of a Registered Society or the provisions of a mortgage given to a Society by a borrower provide that the Society may charge an additional fee in the event of the early discharge of the borrower's mortgage debt then, notwithstanding such rules or provisions, it is lawful for the Society to charge and recover from the borrower such additional fee subject to the following conditions:- (a) the additional fee does not exceed 0.5 per centum of the portion of the mortgage debt discharged before it falls due under the mortgage; and (b) the mortgage debt is discharged within three years of the date of the approval on behalf of the Society of the advance to the borrower, and not otherwise and a Society that charges or recovers from a borrower such an additional fee when it is not lawful for it to do so is guilty of an offence against this Act.

Building Societies Act Amendment Act (No. 2) 1976, No. 49 471 (6) A Registered Society that contravenes a provision of subsection ( 1) or (3) or is guilty of the offence defined in subsection (5) is liable to a penalty of $2 000 and in addition to imposing a penalty on the Society the Court by which the Society is convicted may order the Society to repay to the person from whom it has received moneys in contravention of that subsection the amount of such moneys. A provision of any document that purports to exclude or modify the operation of this section or any part of it is void. ( 7) A person who has paid to or on account of a Registered Society moneys the receipt of which by the Society constitutes or would constitute a contravention of subsection ( 1) or (3) or renders the Society guilty of the offence defined in subsection (5) may recover from the Society by action in a court of competent jurisdiction , as a debt due and owing to such person by the Society, the moneys so paid together with interest thereon at such rate as the Court may order. (8) (a) A Registered Society that has made, prior to the commencement of the Building Societies Act AmendmentAct1974, any advance in respect of which it is for any reason precluded from charging a rate of interest up to the prescribed rate or, if there be no prescribed rate , up to the maximum rate of interest that the Society is lawfully entitled to charge in respect of an advance if it were made on the date when the approval is sought under this subsection may seek the approval of the Governor in Council to , charge in respect of that advance a rate of interest higher than the rate charged at the time approval is sought but not exceeding- (i) the prescribed rate as determined from time to time; or (ii) if there be no prescribed rate, the maximum rate of interest that the Society is lawfully entitled, from time to time , to charge in respect of advances made by the Society subsequent to the commencement of the said Act. (b) The approval sought may be to the charging of- (i) the prescribed rate as determined from time to time; or (ii) the maximum rate of interest that the Society is lawfully entitled , from time to time, to charge in respect of advances made by the Society subsequent to the commencement of the Building Societies Act AmendmentAct1974, without the specification of a particular rate of interest. (c) Upon his approval being sought by a Registered Society under this subsection the Governor in Council may by Order in Council approve that on and from the date specified in the Order in that behalf the Society may charge in respect of an advance in respect of which his approval is sought- (i) the rate of interest specified in the Society ' s application for his approval made in accordance with this subsection; or

472 Building Societies Act Amendment Act (No. 2) 1976, No. 49 (ii) if a particular rate of interest is not specified in the Society ' s application , the prescribed rate or the maximum rate of, interest as referred to in - paragraph (b) of this subsection according to the terms of the Society's application for his approval. (d) The date specified in the Order in Council ma'y be a date earlier than the date of publication of the Order in the Gazette but shall not- bea date earlier than 15 June 1974. (e) The Registered Society may, pursuant to the approval of the Governor in Council, in respect of advances the subject of such approval, charge-the rate of interest approved by the Governor in Council on. and . from the date specified for that purpose in the Order^in Council, and, in respect of any period prior•to the date of publication of the Order in the: Gazette; including any period prior to the commencement . of the B uilding Societies Act Amendment Act 1974, this provision operates retrospectively accordingly, and any persons by whom such advances are repayable to the Society shall, on and from the. date specified in thg Order, but subject to paragrapl'xs (f) to. (i) inclusive, be liable to pay the rate of interest approved By the Governor in Council notwithstanding= (i) the provisions of this or any other Act .or, law to the contrary; (ii) any term or covenant of anyimortgage-or other instrument securing : - the - 'repayment of moneys advanced by the Society; (iii) any form of mortgage or' other -instrument used by the Society, whether prescribed or not, (iv) the rules of the Society, at the commencement of the Building Societies Act Amendment Act1974 or as they stood at any time prior thereto. (f) This subsection has no application to any person by whom an advance the subject of approval as aforesaid is repayable to the Registered. Society where indebtedness in respect of such advance is liquidated prior to the date of publication of the Order in Council in the Gazette. (g) Notwithstanding that a person may, on and from the date specified in the Order in Council, be liable pursuant to paragraph (e) to pay the rate of interest approved by the Governor in Council, he shall not be taken to have defaulted in complying with or otherwise acted contrary to any covenant or condition of any mortgage or other instrument in question by reason only that additional interest has not been paid or taken into account prior to the date of publication of the Order in the Gazette. (h) Nothing contained in this subsection requires, by reason only of the approval of the Governor in Council to charge the rate of interest as aforesaid, that where pursuant to any mortgage or other instrument a person is required to make periodic payments comprising principal and interest until the whole of the moneys advanced and interest thereon shall have been fully paid and satisfied, the amount of such periodic payments so required to be made be increased.

Building Societies Act AmendmentAct (No. 2) 1976, No. 49 473 . (1) The Governor in Council may prescribe in the Order in Council such terms and conditions as he thinks fit, either generally or in relation to any particular case, in respect of any approval given by him, and any such terms and conditions shall operate and be given effect to according to their tenor. (j) Any reference, in any mortgage or other instrument to which the provisions of this subsection have application, to the rate of interest shall, on and from the date specified as aforesaid in the Order in Council, be read, construed and have effect for all purposes- as a reference to the rate of interest approved by the Governor in Council. (9) In this section the expression " prescribed rate " means the rate of interest for the time being prescribed pursuant to subsection (2) as the maximum rate of interest that a Registered Society is entitled to charge on moneys advanced by it such interest being payable at the rests (if any) specified in the Order in Council whereby such maximum rate of interest is prescribed.". 5. Repeal of and new s. 23E. The Principal Act is amended by repealing section 23E and substituting the following section:- " 23E . S ociety to advise borrower of interest , charges, etc. Where a Registered Society approves an application for an advance on the security of freehold or leasehold estate by way of mortgage the Society shall- (a) within seven days of approving the application; or (b) before requiring the applicant for the advance to execute such documents as are necessary to obtain the security, whichever is the earlier, send by post to the applicant for the advance at his address last disclosed in his application, a notice in the prescribed form setting out in respect of the advance whether or not the rate- of interest or term thereof may vary and such particulars as are prescribed concerning- (i) the rate of interest and the amount thereof that is payable under the advance from the date that the advance is proposed to be made; (ii) the term of the advance; (iii) the date on which interest commences to accrue; (iv) the amount of periodical payments of principal and interest and the date on which they are to commence; (v) the amounts of any costs, fees or other charges paid or to be paid by the applicant.". 6. Amendment of s. 24. Section 24 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:- " (2) The Governor in Council may by Order in Council prescribe a rate per centum as the maximum rate of dividend or interest that may be paid by a Registered Society in respect of any share issued by the Society A hether pursuant to this section or otherwise. 16

474 Building Societies Act AmendmentAct (No. 2) 1976, No. 49 (3) At any time when a maximum rate of dividend or interest is prescribed pursuant to subsection (2) a Registered Society shall not pay a dividend or interest in respect of any share issued by the Society whether pursuant to this section or otherwise at a rate in excess of the maximum rate so prescribed.". 7. Amendment of s. 26 . Section 26 of the Principal Act is amended by- (a) omitting provision (7) and substituting the following provision:- " (7) The Governor in Council may by Order in Council prescribe a rate per centum as the maximum rate of interest that may be paid by a Registered Society in respect of moneys deposited with or lent to the Society."; (b) omitting provision (9) and substituting the following provision:- " (9) At any time when a maximum rate of interest is prescribed pursuant to provision (7) of this section, subject to provision (8) of this section- (a) a Registered Society shall not pay interest on moneys deposited with or lent to the Society at a rate in excess of the rate so prescribed; (b) a Registered Society shall not pay or give, directly or indirectly, a commission, fee, bonus or reward whether pecuniary or otherwise to or on account of a person who deposits with or lends to the Society moneys if the total amount or value so paid or given by way of commission, fee, bonus or reward together with the amount of the interest at the applicable rate paid or payable on the moneys by the Society to the lender or depositor exceed, or would exceed, the amount of the interest on such moneys that would have been paid, or would be payable, to the lender or depositor if such interest had been or were calculated at the maximum rate of interest prescribed under provision (7) of this section at the relevant time or times.". 8. Amendment of s. 33A. Section 33A of the Principal Act is amended by inserting after the expression " 28 (2) " the expression " or 28B (1) or (3) ". 9. Amendment of s. 33B. Section 33B of the Principal Act is amended by- (a) omitting the existing subsection (11); (b) renumbering the existing subsection (10) as subsection (11); (c) omitting the existing subsections (8) and (9) and substituting the following subsections:- " (8) Not less than 14 days' notice of every meeting of a Registered Society shall be given by post to all persons who at the date of the calling of the meeting would be qualified to vote at the meeting, in such manner as is provided for in the rules of the Society.

Building Societies Act AmendmentAct (No. 2) 1976, No. 49 475 (9) It shall be sufficient compliance with the provisions of subsection (8) if the notice is advertised.in such a way as to comply in all respects with the requirements prescribed for such advertising. (10) Not less than 14 days' notice of every meeting of a Registered Society shall be given by post to the auditors of the Society.". 10. Amendment of s. 34AB. Section 34AB of the Principal Act is amended by- (a) omitting subsections (1) and (2) and substituting the following subsections:- " (1) (a) A Registered Society shall, not less than 14 days before each annual general meeting, have available at its registered office and at each branch office and open at all reasonable hours to inspection by a member, depositor or creditor of the Society without fee a copy of all accounts that are to be laid before the Society at the meeting together with a copy of the statements and directors' report required under section 34A. (b) From a date not less than 14 days before each annual general meeting until the next following such date a member, depositor or creditor of a Registered Society, upon request made by him of the Society in writing, shall be furnished, as soon as practicable and without fee, with a copy of such accounts, statements and report as are to be laid before the Society at its next annual general meeting or, as the case may be, as were laid before the Society at its last annual general meeting. (2) Where notice of annual general meeting is given pursuant to section 33B (8) a Registered Society shall, not less than 14 days before the meeting, send a copy of the accounts, statement and report referred to in paragraph (a) of subsection (1) to all persons entitled to receive notice of general meetings of the Society."; (b) in subsection (4) inserting after the expression "(1)" where secondly occurring the expression " or (2)". 11. New s. 34BB . The Principal Act is amended by inserting after section 34BA the following section:- " 34BB . Budget statement and periodical returns. (1) At least once in each calendar year and if a time is prescribed therefor within the time prescribed each Permanent Society shall furnish to the Registrar a budget statement in the prescribed form. (2) Each Permanent Society shall at such times as are prescribed therefor within the time prescribed furnish to the Registrar a report in the prescribed form containing such information as the form requires relating to the revenue, expenditure, budget estimates and business of the Society.". 12. Amendment of s. 36D. Section 36o of the Principal Act is amended by in subsection (6)- (a) in the second paragraph, (i) inserting after the words " maximum rate of interest " where firstly and secondly occurring the words "(if any)" in each case;

476 Building Societies Act Amendment Act (No. 2) 1976, No. 49 (ii) omitting the words " on deposits held " where twice occurring and substituting the words " in respect of shares issued " in each case; (b) adding at the end of the subsection the following paragraphs:- "If during the currency of a precepted loan made by it a Permanent Society varies the rate at which it ordinarily pays interest in respect of shares issued by it the Committee may vary (upwards or downwards) the rate of interest payable by it to the Society in respect of the precepted loan but so that the rate of interest as so varied by the Committee shall not exceed the maximum rate of interest (if any) fixed under section 24 (2) and in that event interest shall be payable to the Society in respect of the precepted loan at the rate as last determined by the Committee. The power conferred on the Committee by the preceding paragraph may be exercised and that paragraph shall apply in respect of every precepted loan whether made before or after the passing of the Building Societies Act Amendment Act 1976 (No. 2).". 13. Amendment of s. 38A. Section 38A of the Principal Act is amended by adding at the end of the section, the following subsection:- " (6) The members of a Registered Society to which engagements are transferred shall be the persons who, immediately before the transfer of engagements, were members of the societies that were parties to the transfer, and any other persons who are admitted to membership of the society to which the engagements were transferred.". 14. Amendment of s. 38C. Section 38c of the Principal Act is amended by- (a) in paragraph (e) of subsection (9) omitting the words " notification of the transfer of engagements or property or specified part thereof as the case may be in the Gazette " and substituting the words " date specified pursuant to subsection (11) "; (b) in subsection (10) omitting the words " of the notification of the transfer in the Gazette " and substituting the words " specified pursuant to subsection (11)"; (c) in subsection (11) omitting the words "day notified by the Registrar in the Gazette " and substituting the words " date specified by the Registrar by notification published in the Gazette "; (d) adding at the end of the section the following subsection:- " (13) The members of a Society to which a transfer is made pursuant to this section shall be- (a) the persons who immediately before the transfer were members of that Society; (b) such persons who are members of the Society that is transferring pursuant to this section and who are specified in the agreement approved under subsection (1).; (c) any other persons who are admitted to membership of the Society to which the transfer is made.".

Building Societies Act AmendmentAct (No. 2) 1976, No. 49 477 15. Amendment of s. 43E. Section 43E of the Principal Act is amended by, in subsection (1), omitting the words " , notwithstanding the provisions of section 33B (11),". 16. Amendment of s. 44. Section 44 of the Principal Act is amended by in the second paragraph inserting after the expression " 34BA," the expression " 34BB,".