Building Societies Act Amendment Act 1987 (No. 2) (Qld)

1018 eens1unb _k=i iu ANNO TRICESIMO SEXTO ELIZA ET AE SECUNDAE EGINAE .1® An Act t o a m end the B uilding Societies Act 1985-1986 in certain particulars [ASSENTED TO IST DECEMBER, 1987]

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1019 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 . This Act may be cited as the Building Societies Act Amendment Act 1987 (No. 2). 2. Citation. (1) In this Act the Building Societies Act 1985-1986 is referred to as the Principal Act. (2) The Principal Act as amended by this Act may be cited as the Building Societies Act 1985-1987. 3. Co m mencement . (1) This section and section 1 shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on a day appointed by Proclamation. 4. Amendment of s. 3. Arrangement of Act. Section 3 of the Principal Act is amended by inserting after the heading "PART VII- AMALGAMATION AND TRANSFER OF ENGAGEMENTS ( ss. 118- 122);" the following heading:- "PART VIIA-CONVERSION OF BUILDING SOCIETIES TO PUBLIC COMPANIES (ss. 122A-122F);". 5. New Part VIIA. The Principal Act is amended by inserting after section 122 the following heading and sections:- "PART VIIA-CONVERSION OF BUILDING SOCIETIES TO PUBLIC COMPANIES 122A . Registration of building society as public company. (1) A building society may convert to a public company limited by shares under the Companies (Queensland) Code in accordance with the following provisions. (2) (a) The building society shall, by special resolution, determine to develop a proposal to convert to a public company for the purposes of carrying on banking business as a savings bank under the Banking Act 1959 of the Commonwealth. (b) Where a building society prior to the commencement of this section passed a special resolution referred to in paragraph (a), that resolution shall have effect- (i) as if it had been passed after that commencement; and (ii) if the Minister so approves, notwithstanding that it is in terms different to those contained in the notice given pursuant to section 87 (1). (3) Upon a determination being made pursuant to subsection (2), the building society may make application to the Federal

1020 Building Societies Act Amendment Act (No. 2) 1987, No. 74 Treasurer for approval in principle for the building society to be granted an authority to carry on banking business as a savings bank under the Banking Act 1959 of the Commonwealth. Where a building society prior to the commencement of this section obtained approval referred to in this subsection that approval shall have effect as if it had been obtained pursuant to this subsection. (4) The building society shall make application to the Minister for the approval of the Governor in Council for it to convert from a building society to a public company limited by shares under the Companies (Queensland) Code for the purposes of carrying on banking business as a savings bank under the BankingAct 1959 of the Commonwealth which application shall be accompanied by- (a) a certified copy of the special resolution referred to in subsection (2); (b) a certified copy of the reply received from the Federal Treasurer pursuant to the application made under subsection (3); (c) a copy of the proposed memorandum of association and articles of association (if any) of the proposed public company; (d) a copy of the draft resolution referred to in subsection (5); (e) a copy of the proposed statement referred to in subsection (7) (a) and other proposed documents referred to in subsection (7) (g); (f) details of the proposed scheme (if any) and a copy of the proposed offer memorandum rek'erred to in subsection (7) (d); (g) such further documents as are considered necesssary by the Minister. Approval under this subsection, if given, shall be given by Order in Council. (5) After obtaining approval referred to in subsection (4) the building society shall conduct a pre-paid postal poll of those of its members who are members of the building society on the date approved by the Minister pursuant to subsection (6) (c) requesting them to pass a resolution authorizing the building society- (a) to apply to be registered as a public company limited by shares under the :Companies (Queensl Code on the condition that it is granted an authority to

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1021 carry on banking business as a savings bank under the Banking Act 1959 of the Commonwealth; (b) subject to the approval of the National Companies and Securities Commission, to adopt a name as a name of the proposed public company; (c) to adopt a memorandum of association for the proposed company and also articles of association where articles of association are necessary or deemed desirable; (d) to alter the rules of the building society to effect the conversion of the building society to a public company and, without limiting the generality of this paragraph- (i) to enable members of the building society- (A) to retain shares referred to in section 122c (2) or to be issued shares referred in section 122c (4) (b); or (B) to retain shares referred to in section 122c (2) and to be issued shares referred to in section 122c (4) (b); (ii) to specify the terms and conditions , including any method of allocation , upon which such shares are to be retained or issued and any other thing or matter ancillary thereto; and (e) to do all such acts and sign all such documents as are necessary or desirable to give effect to or carry out the things or matters referred to in this subsection or any thing or matter ancillary thereto. (6) (a) The building society shall- (i) nominate a date and time as the date on which and the time at which the poll shall close; and (ii) appoint an independent registered company auditor approved by the Minister to be the returning officer for the poll. (b) The poll shall be conducted in such manner as is approved by the Minister. (c) Notwithstanding any provision of this Act or the rules of the building society to the contrary, all persons who are members of the building society on a date nominated by the building society and approved by the Minister shall be entitled to vote in a poll conducted under this subsection.

1022 Building Societies Act Amendment Act (No. 2) 1987, No. 74 (d) The returning officer shall- (i) declare the result of the poll as soon as is practicable after the close of the poll; (ii) furnish to the Minister- (A) a written report on the conduct of the poll; and (B) such other information in relation to the conduct of the poll as the Minister requests. (e) The resolution referred to in subsection ( 5) shall be taken to have been passed if it is passed by a majority of not less than 75% of the members who cast votes in the poll. (f) Where irregularities occur in the conduct of the poll the Minister , if he considers that the irregularities are of such a nature that it is necessary or desirable in the interests of justice to do so, shall declare the poll to be invalid in which case the poll shall have no effect. Such declaration shall be made by the Minister within 14 days of the receipt by the Minister of the report on the conduct of the poll furnished by the returning officer. (g) A declaration under paragraph ( f) does not prejudice the right of the building society to conduct a further poll pursuant to this subsection , subject to such changes in the manner of conducting the poll as the Minister may require. (7) (a) For the purpose of conducting the poll referred to in subsection ( 5) the building society shall send to all of those members who are members of the building society on the date approved by the Minister pursuant to subsection (6) (c) a statement , in such form and containing such information as are approved by the Registrar , including details of the matters specified in paragraph (g). (b) A statement sent pursuant to paragraph ( a) shall be accompanied by- (i) a voting paper in a form approved by the Minister; and (ii) such other documents as may be directed by the Registrar. (c) A statement referred to in paragraph (a)' shall be sent so that it will in the ordinary course of post be delivered to each member referred to in paragraph ( a) and the auditor of the building society not less than 21 days prior to the date nominated pursuant to subsection ( 6) (a). (d) Unless the Minister approves of a scheme submitted by the building society under paragraph ( e), the building society shall furnish a copy of the offer memorandum to all of those members who are members of the building society on the date approved pursuant to subsection ( 6) (c) not less than 21 days prior to the date nominated pursuant.to subsection ( 6) (a).

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1023 (e) The building society may submit a scheme to the Registrar for the approval of the Minister wherein it proposes that, in lieu of furnishing a copy of the offer memorandum to all the members referred to in paragraph (d), it forward such copy to such class or classes of members of the building society specified in the proposal who are members of the building society on the date approved pursuant to subsection (6) (c) not less than 21 days prior to the date nominated pursuant to subsection (6) (a). The Registrar shall investigate the scheme and furnish his recommendation thereon to the Minister. (f) Before furnishing the offer memorandum to its members the building society shall submit the offer memorandum to the Registrar, together with such other documents as the Registrar directs, for his approval and the Registrar, before making his decision whether or not to approve the offer memorandum and other documents (if any), shall refer the offer memorandum and other documents (if any) to the Commissioner for Corporate Affairs for the State for his consideration and opinion as to whether the offer memorandum contains information of a comparable nature to that which a prospectus might be expected to contain if it were approved for registration under the Companies (Queensland) Code. (g) The offer memorandum shall contain or set out- (i) the financial position of the building society; (ii) full particulars of proposals to facilitate the conversion of the building society to a public company (including the estimated nett asset value of shares to be allocated); (iii) details and explanations of any proposed changes to the building, society's rules; (iv) a summary and explanation of the proposed memorandum of association and articles of association (if any); (v) the interests of the directors of the building society in the conversion; (vi) details of how shares in and deposits with the building society at the time of conversion will be dealt with; (vii) arrangements with respect to the reserves of the building society; (viii) details of the opening date for the receipt of offers to take up shares (of a type referred to in section 1220 (4)) in the building society; (ix) the compensation or other consideration that is proposed to be paid or made to the directors and other officers of the building society in relation to the conversion; (x) a report by a registered company auditor on the financial position of the building society; (xi) a report by the directors of the building society as to whether there has arisen in the interval between

1024 Building Societies Act Amendment Act (No. 2) 1987, No. 74 the date to which the auditor's report is compiled and the date of the statement any circumstance that has significantly affected or may significantly affect- (A) the operations of the building society; (B) the results of those operations; (C) the state of affairs of the building society; (xii) the times and places at which the documents referred to in paragraph (h) are to be displayed and that on request a copy thereof will be furnished; (xiii) such other particulars and copies of documents as may be directed by the Registrar. (h) Copies of the memorandum of association, articles of association (if any), trust deed (if any), offer memorandum and proposed changes (if any) to the rules of the building society shall be displayed at all branches and agencies of the building society for not less than 21 days prior to the date nominated pursuant to subsection (6) (a). (i) Copies of the documents referred to in paragraph (h) shall be furnished to a member of the building society on request. (8) If the poll passes the resolution referred to in subsection (5), the building society shall lodge with- (a) the Registrar- (i) a copy of the result of the poll certified by the returning officer; (ii) a certified copy of the alterations to the rules made by the resolution passed under subsection (6); and (iii) the certificate of incorporation of the building society under this Act or the repealed Act. (b) the National Companies and Securities Commission an application for registration under the Companies (Queensland) Code under the common seal of the building society accompanied by- (i) a copy of the result of the poll certified by the returning officer; (ii) the memorandum of association and articles of association (if any) referred to in subsection (5) (c); (iii) a list in the form prescribed by the Companies (Queensland) Code of the persons who have consented to be directors of the proposed public company; (iv) a notice in the form prescribed by the Companies (Queensland) Code of the address of the proposed

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1025 registered office of the proposed public company accompanied by any consent required by that Code; (v) a certified copy of the certificate of incorporation of the building society under this Act or the repealed Act; (vi) any other document required to be lodged by or under the Companies ( Queensland) Code. (9) Upon lodgment of the documents referred to in subsection (8) (a), the . Registrar shall advise the National Companies and Securities Commission by notice in writing of the lodgment. (10) A building society shall not be registered as a public company under a name that includes the words "building society", "building societies ", " permanent building society " or "permanent building societies " in consecutive form or otherwise or any other words importing a similar meaning. (11) The memorandum of association of the proposed public company shall- (a) contain the particulars prescribed by and otherwise be in accordance with the provisions of the Companies (Queensland) Code-, (b) state the objects of the company ( where deemed desirable); and (c) when lodged for registration , be signed by at least 7 members of the building society. (12) The provisions of the Companies (Queensland) Code shall apply with respect to- (a) the necessity for articles of association; (b) the applicability of the regulations contained in Table A in Schedule 3 to that Code; and ( c) any articles of association. (13) Upon- (a) lodgment with the National Companies and Securities Commission of- (i) the application and documents referred to in subsection ( 8) (b); (ii) a copy of the authority to carry on banking business as a savings bank issued under section 9 (3) of the Banking Act 1959 of the Commonwealth; (b) receipt of the advice referred to in section 122F; and (c) receipt of the notice referred to in subsection (9), the Commission, subject to the Companies (Queensland) Code, shall register the building society as a public company limited

1026 Building Societies Act Amendment Act (No. 2) 1987, No. 74 by shares by registering the memorandum of association and articles of association ( if any). (14) Upon registration of the memorandum of association and articles of association (if any), the National Companies and Securities Commission shall certify under its seal that the company is, on and from the date specified in the certificate, incorporated under the Companies (Queensland) Code and that the company is a public company limited by shares. (15) The certificate of incorporation issued by the National Companies and Securities Commission is conclusive evidence that all the requirements of this section and of the Companies (Queensland) Code have been complied with. (16) On and from the day on which the company is incorporated (a) the provisions of the Companies (Queensland) Code shall apply to the company as if it had been registered in the manner prescribed by that Code; and (b) the provisions of this Act (other than this Part) shall cease to apply to the company. (17) Upon incorporation of the building society as a public company, the National Companies and Securities Commission shall forthwith advise the Registrar by notice in writing of the incorporation and the Registrar shall upon receipt thereof forthwith cancel the registration of the building society as a building society under this Act. (18) For the purposes of this section , unless the contrary intention appears- "certified" means certified under the hand of a director of the building society; "copy" means true copy. (19) Where a resolution referred to in subsection (5) has been passed in accordance with subsection ( 6) that resolution shall be deemed to be- (a) a special resolution passed at a general meeting of the building society; and (b) registered under this Act. 122u. Identity retained . When a building society is converted to a public company pursuant to section 122A, the identity of the building society is not affected by its incorporation as a public company and the building society is the same entity as the public company. 122c. Members' rights protected . (1) If the building society is a building society the liability of whose members is limited

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1027 by shares the memorandum of association and articles of association (if any) adopted under section 122A shall not- (a) impose upon the shareholders of the public e mp4ny who were members of the building society immediately before the building society is incorporated as a public company any greater or different liability to contribute to the assets of the public company than the liability to which they were subject as members of the building society; or (b) deprive any shareholder of the public company of any rights with respect to dividends or capital to which he was entitled as a member of the building society immediately before the building society is incorporated as a public company. (2) The building society may make an offer, pursuant to its rules, to any of its members for the members to elect to retain any or all of the shares held by the members in the building society immediately before the building society is incorporated as a public company as shares in the public company on such terms and conditions as are determined by the rules. (3) If a member of the building society in respect of his shares in the building society does not make an election under subsection (2) those shares, on and from the day on which the building society is incorporated as a public company, are hereby converted to deposits of money with the public company in an amount equal to the amount paid up on the shares on that day and in the name of that member. Such deposits shall be repayable and bear interest (including interest unpaid for any period prior to conversion) on the same terms as applied to the shares immediately before the building society is incorporated as a public company. (4) The shareholders in the public company on its conversion from a building society shall be- (a) the members of the building society who make an election under subsection (2); and (b) such other members of the building society who held shares in the building society immediately before that conversion, being shares to which, pursuant to the rules of the building society, are attached special rights that entitle the holder of the shares to be issued shares in the public company in such sum and in such number as are determined by the rules. 122D. Refunds from Contingency Fund. The public company shall be entitled to be refunded out of the Contingency Fund the amount of all voluntary and precepted loans made by the building society to the Contingency Fund together with interest

1028 Building Societies Act Amendment Act (No. 2) 1987, No. 74 thereon at the same time and in the same manner as it would have been entitled had it continued to be a building society. 122E. T ransitional . (1) On and from the day on which the building society is incorporated as a public company- (a) all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, were vested in or belonged to the building society shall, by virtue of this Part without any conveyance, transfer or assignment, vest in or belong to the company; (b) all debts, moneys and claims, liquidated and unliquidated, that, immediately before that day, were due or payable to or by, or recoverable by or against, the building society shall be debts due and moneys payable to or by and claims recoverable by or against the company; (c) all suits, actions and proceedings pending immediately before that day at the suit of the building society shall be respectively suits , actions and proceedings pending at the suit of the company and all suits, actions and proceedings so pending at the suit of any person against the building society shall be respectively suits, actions and proceedings pending at the suit of that person against the company; (d) all contracts, agreements, arrangements and undertakings entered into with and all securities lawfully given to or by the building society and in force immediately before that day shall be deemed to be contracts, agreements, arrangements and undertakings entered into with and securities given to or by the company; (e) the company may, in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of moneys and claims referred to in this subsection and for the prosecution of suits, actions and proceedings so referred to as the building society might have done but for the incorporation; (f) the company may enforce and realise any security or charge existing immediately before that day in favour of the building society and may exercise any powers thereby conferred on the building society as if the security or charge were a security or charge in favour of the company; (g) any security or charge on property of the building society existing immediately before that day in favour of any other person may be enforced and realised and any power thereby conferred may be exercised

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1029 by the person as if the security or charge were a security given or a charge created by the company. (2) Any property that is vested' in the public company by virtue of or in pursuance of this section shall be subject to any debt, liability or obligation specially charged on or affecting the same immediately before the vesting. (3) For the purposes of this section the property of the building society shall include all estates and interests in property, whether real or personal, vested or contingent. (4) Upon production of the certificate of incorporation issued pursuant to subsection 122A (14) and of the appropriate instrument of title (if any)- (a) the Registrar of Titles, where the Real Property Act 1861-1986 applies; or (b) the person or authority charged with registering instruments of title or dealings, where that Act does not apply, shall make such recordings, entries or notations in the appropriate register or upon existing instruments of title or shall issue such new instruments of title as are necessary to evidence the vesting by virtue of this section of any estate or interest in land. (5) On and from the day on which the building society is incorporated as a public company, a reference in any instrument to the building society shall be read and construed as if it were a reference to the public company. (6) Any instrument (other than a fixed term deposit) executed by or in favour of the building society prior to the building society being incorporated as a public company which instrument is to continue to have force and effect on and after the building society is incorporated as a public company and which directs that- (a) moneys are to be paid (other than loans and interest referred to in section 122D) under or in accordance with; (b) the rate of interest in relation to those moneys is to be fixed or determined in accordance with; (c) those moneys are to be paid in the manner specified in; or (d) any other matter whatever relating to those moneys is to be prescribed, fixed or determined under or in accordance with,

1030 Building Societies Act Amendment Act (No. 2) 1987, No. 74 a provision of this Act or a rule or regulation of the building society shall be construed as if in lieu of that direction the instrument contains a provision that- (e) those moneys are to be paid as directed; (f) the rate of interest in relation to those moneys is to be fixed or determined; (g) those moneys are to be paid in the manner specified; and (h) the other matter is to be fixed or determined, by the public company. 122F. Stamp duty and other fees. (1) In respect of the business, property, rights and liabilities acquired pursuant to this Part by a public company from a building society- (a) any stamp duties or other amounts which might be payable under the Stamp Act 1894-1987; and (b) any registration fees which might be payable under the Real Property Act 1861-1986 or in the case of lands and securities not subject to that Act, payable under such other Acts providing for the registration of dealings with such land and securities, shall not be payable, but there shall be payable to Consolidated Revenue- (i) because stamp duty is not otherwise payable in respect of the acquisition, such amount as is determined by the Governor in Council (on the recommendation of the Treasurer of the State) calculated on such basis as he may determine; and (ii) an amount determined by the Governor in Council (on the recommendation of the Treasurer of the State) in respect of registration fees which, but for this Part, might be payable under the Real Property Act 1861- 1986 or under such other Acts providing for the registration of dealings with lands and securities not subject to the Real Property Act 1861-1986. (2) Approval shall not be given under section 122A (4) until amounts have been determined under this section and the building society shall furnish such documents and information as may be required by the Treasurer of the State to enable the determination to be made.

Building Societies Act Amendment Act (No. 2) 1987, No. 74 1031 (3) The amounts determined under this section shall be paid to the Treasurer for the State before the building society is registered as a public company under section 122A (13) and the Treasurer shall, not later than the business day next following after receipt of those amounts, advise the National Companies and Securities Commission of the payment.".