Defence Preparations (Capital Issues) Regulations (Cth)

DEFENCE PREPARATIONS (CAPITAL ISSUES) REGULATIONS.

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Statutory Rules 1951, No. 84.(c)

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Citation.

1. These Regulations may be cited as the Defence Preparations (Capital Issues) Regulations.

Parts.

2. These Regulations are divided into Parts, as follows :—

Part I.—Preliminary.

Part II.—Companies.

Part III.—Securities.

Part IV.—Miscellaneous.

 

(c) Made under the Defence Preparations Act 1951 on 1st August, 1951; notified in Gazette on 2nd August, 1951.

 

Definitions.

3. In these Regulations, unless the contrary intention appears—

“ building society ” means a society registered as a building society or co-operative housing society under the law of a State or Territory of the Commonwealth ;

“ company ” includes a society, club or association which has for its purposes, or for one of its purposes, the pecuniary profit or gain of its members ;

“ co-operative society ” means a body registered under the law of a State or Territory of the Commonwealth as a co-operative society, co-operative company or co-operative association, and includes a body which the Treasurer, by order, declares to be a co-operative society for the purposes of these Regulations ;

“ declared pastoral company ” means a company or body which the Treasurer, by order, declares to be a pastoral company for the purposes of these Regulations ;

“ deposit ” means unsecured loan ;

“ loan ” includes advance ;

“ local authority ” includes—

(a) a city, county, municipal, district or shire council ; and

(b) a water board, electricity board, sewerage board, harbour board, public hospital board, fire brigade board, transport board or roads board constituted by or under the law of a State or Territory of the Commonwealth,

and any other body which the Treasurer, by order, declares to be a local authority for the purposes of these Regulations ;

“ officer ” means a person holding office under the Commonwealth and includes a person employed by an authority or body constituted by or under an Act ;

“ security ” means bond, debenture, debenture stock, inscribed stock, mortgage or charge ;

“ the preceding two years ”, in relation to an act or transaction, means the period of twenty-four months ending on the date of the act or transaction ;

“ the preceding year ”, in relation to an act or transaction, means the period of twelve months ending on the date of the act or transaction ;

“ the previous Regulations ” means the National Security (Capital Issues) Regulations as in force at any time under the National Security Act 1939 or the Defence (Transitional Provisions) Act 1946, or under either of those Acts as amended.

Interpretation.

4. For the purposes of these Regulations—

(a) where a company has issued, or issues, shares or stock at a premium, the company shall be deemed to have made, or to make, an issue of authorized capital of an amount equal to the amount of authorized capital represented by those shares or that stock, together with the amount received, or receivable, by way of premium ;

 

(b) where, upon the receipt by a person of a loan, the whole or a part of the property or assets of that person becomes mortgaged or charged with the repayment of the whole or a part of that loan, that person shall be deemed to have given a mortgage or charge upon the security of that property or those assets, and the amount of that loan shall be deemed to be the amount of the mortgage or charge ; and

(c) where a deposit has been accepted or received by a company, a sum repaid or repayable in excess of the net amount deposited shall be regarded as interest and shall be taken into account in calculating the rate of interest on the deposit.

Saving.

5.—(1.) A consent granted or continued in force under the previous Regulations and in force at the commencement of these Regulations shall be deemed to be a consent granted under these Regulations.

(2.) An application for consent under the previous Regulations which has not been granted or refused before the commencement of these Regulations shall be deemed to be an application for consent under these Regulations.

Part II.—Companies.

Issue of capital by companies.

6. A company, or a person acting for or on behalf of a company, shall not, without the consent in writing of the Treasurer, make an issue of authorized capital of the company if the amount of authorized capital issued by the company during the preceding two years (including the issue then made), together with—

(a) the amount borrowed and not repaid under a security issued or given by the company during that period, not being a security referred to in sub-regulation (3.) of regulation 13 of these Regulations ; and

(b) the amount borrowed and not repaid under a deposit accepted or received by the company during that period,

exceeds Ten thousand pounds.

Provisions with respect to calls.

7. A company, or a person acting for or on behalf of a company, shall not, without the consent in writing of the Treasurer—

(a) make a call upon shares issued by the company, being shares representing authorized capital issued by the company in pursuance of a consent granted under the previous Regulations on or after the thirteenth day of January, 1950, and before the twenty-second day of February, 1951, unless the whole of the moneys to be paid as the result of the call are required to be paid not later than the thirty-first day of December, 1951 ; or

(b) make a call upon shares issued by the company, being shares representing authorized capital issued by the company in pursuance of a consent granted under the last preceding regulation, unless the whole of the moneys to be paid as the result of the call are required to be paid within eighteen months after the date on which the consent was granted.

Provisions with respect to deposits.

8. A company (other than a bank, a declared pastoral company, a building society or a co-operative society) shall not, without the consent in writing of the Treasurer—

(a) accept or receive a deposit—

(i) if the amount borrowed and not repaid under deposits accepted or received by that company (including the deposit then accepted or received) during the preceding year exceeds Five thousand pounds ; or

(ii) if the amount borrowed and not repaid under deposits accepted or received by that company (including the deposit then accepted or received) during the preceding two years, together with the amount of authorized capital issued by the company during that period and the amount borrowed and not repaid under a security issued or given by the company during that period (not being a security referred to in sub-regulation (3.) of regulation 13 of these Regulations), exceeds Ten thousand pounds ; or

(b) pay interest on a deposit (other than a deposit made by a bank or a declared pastoral company) accepted or received by that company after the date of commencement of these Regulations at a rate higher than Ten shillings per centum per annum.

Non-liability for interest above maximum rate.

9. A company is not liable to pay interest on a deposit at a rate higher than the maximum rate payable on that deposit under the last preceding regulation and the remedies for enforcing an agreement to pay interest on such a deposit are limited to enforcing payment of interest at the maximum rate so payable.

Part III.—Securities.

Securities not to be issued without consent.

10.— (1.) A person shall not, without the consent in writing of the Treasurer, issue or give a security.

(2.) Nothing in this regulation prevents or affects the issue or giving of a security by a local authority—

(a) to the Government of the State in which the local authority is constituted ; or

(b) with the approval of the Treasurer of that State, or a Minister of State for that State acting on his behalf, to a person other than the Government of that State.

Certain payments prohibited without consent.

11.— (1.) A person shall not, without the consent in writing of the Treasurer, in respect of a security to which consent has been given under these Regulations or under the previous Regulations—

(a) pay or charge interest at a rate higher than the rate of interest payable under the security ; or

(b) repay, or receive by way of repayment, an amount of capital in excess of the amount borrowed under the security.

(2.) A person who issues or gives a security to which consent has been given under these Regulations or the previous Regulations shall not, without the consent in writing of the Treasurer, make

a payment to the person to whom the security was issued or given, or to another person, the effect of which is that the security is issued or given at a discount or the person by whom the security was issued or given does not receive the benefits of the full amount borrowed under the security.

(3.) Nothing in this regulation prevents the payment or receipt of an amount representing capitalized interest, or rates, taxes, insurance, repairs or other outgoings paid or incurred by a person for the enforcement, protection or preservation of his security, or costs, charges or expenses paid or incurred by a person under or in relation to his security.

Certain transactions not affected.

12. Nothing in this Part prevents or affects the issue or giving of a security to the Commonwealth, a State, an authority of the Commonwealth or of a State, a bank, a declared pastoral company, a building society or a co-operative society.

Certain loans not affected.

13.—(1.) Subject to the next succeeding sub-regulation, nothing in this Part prevents or affects the issue or giving of a security by a person—

(a) if the amount of the securities issued or given (including the security then issued or given) by that person during the preceding year does not exceed Five thousand pounds ; and

(b) if the amount of the securities issued or given (including the security then issued or given) by that person, being a company, during the preceding two years, does not, together with the amount of authorized capital issued by that company during that period and the amount borrowed and not repaid under deposits accepted or received by that company during that period, exceed Ten thousand pounds.

(2.) The last preceding sub-regulation does not affect the application of any other provision of this Part to the giving of a security, being a mortgage or charge, if—

(a) the property or assets the subject of the mortgage or charge consist of, or include, land ;

(b) the mortgage or charge is a first mortgage or charge, or is a second or subsequent mortgage or charge to a person who already holds a first mortgage or charge on that property or those assets or on a part of that property or of those assets ; and

(c) the rate of interest payable under the mortgage or charge exceeds the rate of Four pounds ten shillings per centum per annum.

(3.) For the purpose of calculating the amount of Five thousand pounds referred to in paragraph (a) of sub-regulation (1.) of this regulation, or the amount of Ten thousand pounds referred to in paragraph (b) of that sub-regulation, account shall not be taken of—

(a) a security exempted, by order of the Treasurer, from the application of these Regulations or of the previous Regulations ;

(b) a security referred to in the last preceding regulation ; or

(c) an amount representing rates, taxes, insurance, repairs or other outgoings paid or incurred by a person for the enforcement, protection or preservation of his security, or costs, charges or expenses paid or incurred by a person under or in relation to his security.

Declaration to be made where consent not given to security.

14.—(1.) Where, by reason of the operation of the last preceding regulation, the consent of the Treasurer to the issue or giving of a security is not required, the person issuing or giving the security shall—

(a) declare in the security that the consent of the Treasurer to the security is not required ; or

(b) deliver to the person to whom the security is issued or given, at the time of issuing or giving the security, or at the time of receiving a further loan under the security, a declaration stating that the consent of the Treasurer to the security or further loan is not required.

(2.) A person shall not make a false statement in a declaration made for the purposes of the last preceding sub-regulation.

Part IV.—Miscellaneous.

Application for consent of Treasurer.

15. An application for the consent of the Treasurer under these Regulations shall be in writing and shall be accompanied by particulars in writing of the matter for which consent is sought, together with such further information as the Treasurer directs.

Consent of Treasurer.

16.—(1.) Where application is made for the consent of the Treasurer under these Regulations, the Treasurer may, subject to the next succeeding regulation, grant the consent, either unconditionally or subject to such conditions as he thinks fit, or refuse to grant the consent.

(2.) Where the consent of the Treasurer is granted subject to conditions, the person to whom, or the company to which, the consent is granted shall comply with those conditions.

(3.) Where the consent of the Treasurer is granted under these Regulations but no period is specified in the consent as the period of its operation, the consent shall cease to be in force at the expiration of the period of six months after the date on which the consent was granted.

Consent not to be refused except for purposes of defence preparations.

17.—(1.) The Treasurer shall not refuse to grant consent under the last preceding regulation except for purposes of or in relation to defence preparations.

(2.) The Treasurer shall not grant consent under the last preceding regulation subject to a condition except for purposes of or in relation to defence preparations.

(3.) A person taking proceedings in a court for relief, whether by way of a declaration or otherwise, upon the ground that an application for the consent of the Treasurer under these Regulations has been refused contrary to this regulation, or upon the ground that the consent of the Treasurer to an application under these Regulations has been granted subject to a condition contrary to this regulation, may apply to the court for an order directing the Treasurer to state in writing the facts and matters by reason of which—

(a) the refusal of consent; or

(b) the condition subject to which the consent was granted.

was for purposes of or in relation to defence preparations, as the case may be.

(4.) Notice of an application under the last preceding sub-regulation shall be given to the Treasurer, who shall be entitled to appear upon the hearing of the application.

(5.) The court may, if it thinks fit, make the order applied for.

(6.) A statement in writing by the Treasurer made in compliance with an order under the last preceding sub-regulation shall be filed in the court and shall thereupon, subject to any objection as to the relevancy of any part of the statement, be prima facie evidence of the matters contained in the statement.

(7.) The court may make an order with respect to the costs of and incidental to the application, and of and incidental to the preparation and filing of the statement, whether the proceedings in relation to which the statement is made are determined or not.

Use of consent.

18. A company, or a person on behalf of a company, shall not make an intimation, whether orally, in writing or in any other way, of the fact of the Treasurer’s consent to an application under these Regulations or the previous Regulations without including in the intimation a statement in the following terms or in terms of the like effect :—

“ The fact that the Treasurer of the Commonwealth has consented to [here insert particulars of the matters consented to by the Treasurer]is not to be taken in any way as a guarantee of the actual or probable financial stability or success of the company.”.

Secrecy.

19. An officer, or a person advising the Treasurer in relation to an application under these Regulations, shall not, except in the course of his duty, divulge information furnished in connexion with applications under these Regulations.

False statements.

20. A person shall not make to the Treasurer, or to an officer having duties connected with applications under these Regulations, a statement, whether oral or in writing, relating to a matter dealt with under these Regulations which he knows to be untrue in a particular or which is made by him without his having first made proper inquiries to ascertain the truth of the statement.

Exemption.

21.—(1.) The Treasurer may, by order, either wholly or to the extent specified in the order, exempt from the application of the whole or any of the provisions of these Regulations a person or company, or class of persons or companies, or a security or other transaction or class of securities or other transactions.

(2.) An order made under this regulation may be expressed to continue in operation for a period specified in the order and, if so expressed, shall continue in operation for that period and no longer.

(3.) An order shall not be made under this regulation unless the Treasurer is satisfied that the effect of the order will not be prejudicial to defence preparations.

Power to obtain information.

22.—(1.) The Treasurer may, by order, require a person (including an officer employed by a local authority)—

(a) to furnish to the Treasurer, or to such other person as the Treasurer directs, such information as the Treasurer or that other person requires ; and

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(b) to attend and give evidence before the Treasurer or such other person as the Treasurer directs,

with respect to an act, transaction, matter or thing prohibited by these Regulations, or to which a provision of these Regulations applies, and may require him to produce all books, documents and other papers in his custody or under his control relating to the act, transaction, matter or thing.

(2.) The Treasurer may require the information or evidence to be given on oath or affirmation and either orally or in writing and for that purpose the Treasurer or person before whom the evidence is given may administer an oath.

(3.) A person shall not—

(a) refuse or fail to comply with a requirement made in pursuance of sub-regulation (1.) or (2.) of this regulation ; or

(b) with intent to evade the provisions of these Regulations, destroy, mutilate, deface, secrete or remove a book, document or other paper.

Validation of transactions.

23.—(1.) Where a transaction has been entered into or an act has been done in contravention of these Regulations, or where a condition subject to which consent was given to a transaction or to the doing of an act under these Regulations has not been complied with, the transaction or act is not thereby invalidated.

(2.) Nothing in this regulation affects the operation of regulation 9 or regulation 11 of these Regulations or affects the liability of a person to a penalty in respect of a contravention of these Regulations.

Contracts to evade Regulations.

24. A person shall not enter into or make a contract or arrangement, whether orally or in writing, for the purpose of, or which has the effect of, in any way, and whether directly or indirectly, defeating, evading or avoiding, or preventing the operation of, these Regulations in any respect.

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