Loan Fund Companies Act Amendment Act 1982 (Qld)

629 (Queenvila tb ANNO TRICESIMO PRIMO ELIZABETHAE SECUNDAE REGINAE No. 36 of 1982 An Act to amend the Loan Fund CompaniesAct 1982 in certain particulars [ASSENTED TO 2ND SEPTEMBER, 1982]

630 Loan Fund Companies Act Amendment Act 1982, No. 36 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 Loan Fund Companies Act Amendment Act 1982. (2) In this Act the Loan Fund Companies Act1982 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Loan Fund Companies Act1982. 2. Amendment of s. 4 . Meaning of terms . Section 4 of the Principal Act is amended by in the definition " loan fund company ", adding at the end thereof the words " or that is deemed to be a loan fund company pursuant to subsection (11) of that section. 3. Amendment of s. 10 . Power of Minister to declare an existing company to be a loan fund company for the purposes of this Act. Section 10 of the Principal Act is amended by- (a) omitting subsection (10) and substituting the following subsection:- (10) Where- (a) a loan fund company, being a company wi'hin the meaning of the Companies (Queensland) Code has been wound up under Part XII of that Code or the registration of that company has been cancelled under section 459 of that Code; (b) a loan fund company, being a recognised company- (i) lodges with the National Companies and Securities Commission a notice under the provisions of the law of the State or Territory of the Commonwealth where it is incorporated that correspond to section 503 of that Code, to the effect that it has ceased to have a place of business or to carry on business in Queensland; or (ii) is dissolved in the State or Territory of the Commonwealth where it is incorporated; (c) a loan fund company, being a recognised foreign company- (i) lodges with the National Companies and Securities Commission a notice under the provisions of the law of the State or Territory of the Commonwealth where it is registered that correspond to section 503 of that Code, to the effect that it has ceased to have a place of business or to carry on business in Queensland; (ii) is dissolved in the place where it is incorporated; or (iii) has its registration as a foreign company in a State or Territory of the Commonwealth cancelled under the provisions of the law of the State or Territory that correspond to Division 5 of Part XIII of that Code; or

Loan Fund Companies Act Amendment Act 1982, No. 36 631 (d) a loan fund company, being a foreign company (other than a recognised foreign company)- (i) lodges with the National Companies and Securities Commission a notice under section 518 of that Code to the effect that it has ceased to have a place of business or to carry on business in Queensland; (ii) is dissolved in the place where it is incorporated; or (iii) has its name removed from or struck off the register pursuant to section 518 of that code, it shall no longer be a loan fund company and the declaration (if any) made under subsection (1) with respect to that company shall thereupon be deemed to be revoked."; (b) adding at the end of the section the following subsections:- "(11) Upon and by virtue of an appointment under section 57 of an administrator to administer the affairs and activities of an existing company the company shall become a loan fund company for the purposes of this Act and shall continue as such whilst an administrator continues to administer the affairs and activities of the company. If a company that has ceased to be a loan fund company by reason of the termination of the administration of its affairs and activities by an administrator wishes to be declared to be a loan fund company pursuant to subsection (1), then subsection (2) shall apply in relation to its application as if it required application to be made to the Minister within a time prescribed by Order in Council in respect of that company. (12) The Minister may by writing under his hand declare that a provision or provisions of this Act is or are not to apply to a loan fund company referred to in subsection (11) and where the Minister does so declare the declaration shall have effect accordingly and the Minister may in like manner revoke, vary or amend any such declaration.". 4. Amendment of s. 57. Appointment and powers of administrator. Section 57 of the Principal Act is amended by- (a) in subsection (1), (i) omitting the word " or " where it occurs between provisions (b) and (c); (ii) omitting the expression " . " at the end of provision (c) and adding after that provision the following words:- [4 or (d) if the Supervisor is of the opinion that an administrator ought to be appointed to administer the affairs and activities of the company and that the lapse of time required for an inquiry into the affairs of the company under Division 2 or for an investigation under Part VII of the Companies (Queensland) Code would be detrimental to the interests of- (i) members; or (ii) creditors of the company.".

632 Loan Fund Companies Act Amendment Act 1982, No. 36 (b) inserting after subsection (1) the following subsections:- (IA) Upon the appointment of an administrator or at any time while an administrator is appointed the Supervisor may, with the approval of the Minister, by instrument in writing, appoint a person to be deputy administrator. The function of a deputy administrator shall be to act as administrator to administer the affairs and activities of the company at any time or during any period when- (a) there is a vacancy in the office of the administrator; (b) the administrator is through illness, infirmity or absence unable to act as such; or (c) he is requested so to act by the supervisor, and, while he so acts, a deputy administrator shall have the functions, duties, powers and status of an administrator prescribed by this Act and the affairs and activities of the company shall be taken to be administeie by an administrator. (IB) Where a deputy administrator is acting pursuant to subsection (lA) (c) he may act concurrently with the administrator whose deputy he is."; (c) in subsection (3), adding at the end of paragraph (b) the words and for the purpose of administering those affairs and activities shall be an exempt dealer within the meaning of the Securities Industry (Queensland) Code ". 5. New ss. 57A and 57B. The Principal Act is amended by inserting after section 57 the following sections:- " 57A. Allocation of loan priority numbers by administrator . (1) Where an administrator has been appointed to administer the affairs and activities of a company under section 57 he shall comply with sections 15 and 16 in respect of that company so far as he is able in the circumstances. (2) The allocation of loan priority numbers by an administrator to comply with section 15 shall be in accordance with the lawful obligations of the company in respect of such allocation and to that end an administrator may re-arrange existing allocations of loan priority numbers made by the company. (3) Where an administrator has re-arranged existing allocations of loan priority numbers as permitted by subsection (2) he shall adjust the register (if any) kept pursuant to section 16 or, if there is no such register, establish such a register in accordance with the re-arrangement. 57B. Effect of administration on payment of calls etc. (1) Whilst an administrator appointed under section 57 is administering the affairs and activities of a loan fund company- (a) no calls shall be made in respect of loan entitlement shares in that company; and

Loan Fund Companies Act Amendment Act 1982, No. 36 633 (b) a member shall not be liable to make any payment in respect of loan entitlement shares in that company whether in payment of a call made by that company or of an instalment due to that company or of any arrears owed by him to the company in respect of any such call or instalment. (2) A member shall not be in any way penalized on account of his exercising his rights conferred by subsection (1).". 6. Amendment of s. 69. Special provisions with respect to winding up. Section 69 of the Principal Act is amended by- (a) omitting subsection (1) and substituting the following subsection:- " (1) In its application to companies to which this section applies the Companies (Queensland) Code shall be read as if- (a) after section 363 (1) the following subsection had been inserted :- " (lA) Without prejudice to the application of subsection (1) to an existing company or a loan fund company within the meaning of the Loan Fund Companies Act1982 or a company that is operating or managing, controlling or promoting the operation of a loan fund scheme in contravention of section 8 of that Act, such a company may be wound up under an order of the Court on the application of the Supervisor of Loan Fund Companies or on the application of him and one or more of the parties specified in that subsection."; (b) after section 364 (1) (j) the following paragraphs had been inserted:- (kk)) in the case of a loan fund company within the meaning of the Loan Fund Companies Act1982 the company has failed to lodge with the Supervisor of Loan Fund Companies any return or document required to be lodged with him under section 20, or to comply with a notice served on the company under section 21, of that Act; (1) in the case of an existing company or a loan fund company within the meaning of the Loan Fund Companies Act1982 the Supervisor of Loan Fund Companies has, after holding an inquiry under Division 2 of Part VI of that Act, reported that he is of the opinion that the company cannot pay its debts and should be wound up, or that it is in the interests of the public or of the shareholders or of the creditors of the company that the company should be wound up; (m) in the case of an existing company or a loan fund company within the meaning of the Loan Fund Companies Act1982 the Supervisor has certified that in his opinion the company should be wound up; or 21

634 Loan Fund Companies Act Amendment Act 1982, No. 36 (n) the company is operating or managing, controlling or promoting the operation of a loan fund scheme in contravention of section 8 of the Loan Fund CompaniesAct1982."; (c) after the words " Securities Industry (Queensland) Code ", in section 441 (j), the words " or pursuant to a direction given under section 53 (2) of the Loan Fund Companies Act1982," had been inserted; (d) after the words " wound up," in section 442 (1) the words " or a direction given under section 53 (2) of the Loan FundCompanies Act1982 is served on an existing company or a loan fund company that is being wound up," had been inserted; (e) after the words " the order " in section 442 (1), the words " or, as the case may be, the service of the direction " had been inserted; (f) the words " wound up." had been omitted from section 470 (1) (c) (iv) and the words "wound up; or" had been inserted instead; and (g) after section 470 (1) (c) (iv), the following subparagraph had been inserted:- (vv)) if the company is operating, or managing, controlling or promoting the operation of, a loan fund scheme in contravention of section 8 of the Loan Fund CompaniesAct1982." (b) in subsections (2), (3), (4), (5) and (7), omitting the words " an existing company or a loan fund company " and substituting in each case the words " a company to which this section applies "; (c) omitting subsection (8) and substituting the following subsection:- " (8) Subsections (2) to (7) shall apply on the winding up of a company to which this section applies notwithstanding anything in the Companies (Queensland) Code to the contrary."; (d) adding at the end of the section the following subsection:- (10) This section applies to an existing company, a loan fund company and a company that is operating or managing, controlling or promoting the operation of a loan fund scheme in contravention of section 8.". 7. New s. 70. The Principal Act is amended by inserting after section 69 the following section:- " 70. Avoidance of certain obligations upon administration or winding-up. (1) Where an administrator has been appointed under section 57 to administer the affairs and activities of an existing company or a loan fund company or the winding-up of such a company has commenced the Supervisor may examine- (a) any agreement or undertaking made or given by the company that provides for a liability that would arise upon the

Loan Fund Companies Act Amendment Act 1982, No. 36 635 termination of an agreement or the occurrence of an event consisting of or connected with the administration of the affairs and activities of the company under any law or the winding-up of the company; and (b) any charge or encumbrance created by the company that becomes fixed upon demand, or upon the occurrence of an event consisting of or connected with the administration of the affairs and activities of the company under any law or the winding-up of the company or that gives rise to a liability such as is referred to in paragraph (a), and to make such other inquiry in relation thereto as he thinks fit. (2) If upon such examination and inquiry made by him pursuant to subsection (1) the Supervisor is of the opinion that one purpose of the agreement, undertaking, charge or encumbrance is to allow for the stripping of the company's assets to the detriment of any member of the company, he shall issue his certificate under his hand that the agreement or undertaking, to the extent that it provides as referred to in paragraph (a) of that subsection, is unenforceable or that the charge or encumbrance is unenforceable. (3) Where a certificate of the Supervisor has been issued under subsection (2) the administration of the affairs and activities of the company (whether by an administrator appointed under section 57 or by new directors after the termination of his administration) or the winding-up of the company shall proceed without regard to- (a) any agreement or undertaking to the extent that it has been so certified as unenforceable; and (b) any charge or encumbrance so certified as unenforceable. (4) No action or other proceeding shall be brought in any court in respect of- (a) the examination or inquiry conducted by the Supervisor under subsection (1); (b) the issue of the Supervisor's certificate under subsection (2); or (c) the administration of the affairs and activities of a company or the winding-up of a company in accordance with subsection (3). (5) A writing purporting to be a certificate under the hand of the Supervisor and to have been issued under subsection (2) shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein. (6) The provisions of this section shall apply and be given effect notwithstanding any Act or law or rule of practice to the contrary.". 8. Table of amendments to references to Companies Act and incidental amendments . The Principal Act is amended as indicated in the following Table:-

Enactment Amended Section 4 ( 1) - Meaning of terms TABLE Amendment Omit the definition of " foreign company " and substitute the following definition: - " foreiiggnn company " has the meaning assigned to that expression by section 5 ( 1) of the Companies ( Queensland) Code; " . In the definition " officer " in provision ( c) omit the expression " appointed under Part IX of the Companies Act 1961- 1981 " . In the definition " public company " omit the expression " Companies Act 1961- 1981 " and substitute the words " Companies ( Queensland) Code " . Omit the definition " recognised company " and substitute the following definition: - " reccooggnnisiesde. d company " has the meaning assigned to the expression " recognized company " by section 5 ( 1) of the Companies ( Queensland) Code; " . After the definition " recognised company " , insert the following definition: - " " recognised foreign company " has the meaning assigned to the expression " recognized foreign company " by section 5 ( 1) of the Companies ( Queensland) Code; " . Section 13 ( 1) - Offer of shares to public Omit the expression " Companies Act 1961- 1981 " and substitute the words " Companies ( Queensland) Code " .

Enactment Amended TABLE- continued Amendment Section 13 ( 2) . . Omit the expression " Companies Act 1961- 1981 " and substitute the words " Companies ( Queensland) Code " . Section 13 ( 3) . . Omit the expression " Companies Act 1961- 1981 " and the words " that Act " and substitute the words " Companies ( Queensland) Code " and the words " that Code " respectively. Section 16 ( 1) - Register of priority In provision ( a) ( i) omit the expression " Companies Act 1961- 1981 numbers and substitute the words " Companies ( Queensland) Code " . Omit the word " or " where it occurs between subparagraphs ( i) and ( ii) of paragraph ( a) . Omit provision ( a) ( ii) and substitute the following provisions: - ( ii) if it is a recognised company or a foreign company and keeps a branch register in Queensland of members who are resident in Queensland, keep at the place where that branch register is kept; or ( iii) if it is a recognised company or a foreign company to which subparagraph ( ii) does not apply, keep at its principal or registered office in Queensland, " . Section 16 ( 3) Omit the words " , or if the company is a recognised company or a foreign company, the branch register of members who are resident in Queensland " and substitute the words " or, if the company keeps a branch register in Queensland of members who are resident in Queensland , that register " .

Enactment Amended TABLE- continued Amendment Section 19 ( 1 ) - Register of members- additional requirements Omit the expression " Companies Act 1961- 1981 shall, within the period specified in subsection ( 3) , enter in the register of members kept pursuant to section 151 of that Act " and substitute the expression " Companies ( Queensland) Code shall, within the period specified in subsection ( 3) , enter in the register of members kept pursuant to section 256 of that Code " . Section 19 ( 2) . . Omit subsection ( 2) and substitute the following subsection: - ( 2) A loan fund company which, pursuant to section 262 or, as the case may be, section 521 of the Companies ( Queensland ) Code, keeps a branch register in Queensland of members who are resident in Queensland shall, within the period specified in subsection ( 3) enter in that branch register the particulars referred to in subsection ( 1) . Penalty: $ 200 and, in the case of a continuing offence, a further penalty of $ 20 for each day during which the offence continues. " . Section 20 ( 2) - Returns In provision ( b) omit the expression " Companies Act 1961- 1981 " and substitute the words " Companies ( Queensland) Code " . In provision ( c) omit the words " its branch register " and substitute the words " the branch register ( if any) " . Omit provision ( d) and substitute the following provision: - ( d) all such particulars with respect to the person who, as at the date of lodgment of the return, are directors of the company and any person who, as at that date, is a principal executive officer or

Enactment Amended Section 20 ( 3) . . Section 37- Voting rights TABLE- continued Amendment secretary of the company as are required by section 238 of the Companies ( Queensland) Code to be contained in the register of Directors, principal executive officers and secretaries of the company or, where the company is a recognised company or a foreign company, would be so required if the company were a company within the meaning of that Code; " . Omit from provision ( a) the word " manager " , the expression " section 162 of the Companies Act 1961- 1981 " and the expression " Companies Act 1961- 1981 " and substitute respectively the words " principal executive officer " , the expression " section 269 of the Companies ( Queensland) Code " and the words " Companies ( Queensland) Code " . Omit from provision ( b) the expression " section 162 of the Companies Act 1961- 1981 " and the expression " Companies Act 1961- 1981 " and substitute respectively the expression " section 269 of the Companies ( Queensland) Code " and the words " Companies ( Queensland) Code " . Omit from provision ( c) the expression " section 167 of the Companies Act 1961- 1981 " and the expression " Companies Act 1961- 1981 " and substitute respectively the expression " section 285 of the Companies ( Queensland) Code " and the words " Companies ( Queensland) Code " . Omit the expression " Companies Act 1961- 1981 " wherever it occurs and substitute in each case the words " Companies ( Queensland ) Code " .

Enactment Amended TABLE- continued Amendment Section 39- Application of Division Omit the expression " section 64 of the Companies Act 1961- 1981 " and substitute the expression " section 123 of the Companies ( Queensland) Code " . Section 43 ( 1) - - Register of forfeited In provision ( a) ( i) omit the expression " Companies Act 1961- 1981 and surrendered shares and substitute the words " Companies ( Queensland) Code " . Omit the word " or " where it occurs between subparagraph ( i) and ( ii) of paragraph ( a) . Omit provision ( a) ( ii) and substitute the following provisions: - ( ii) if it is a recognised company or a foreign company and keeps a branch register in Queensland of members who are resident in Queensland, keep at the place where that branch register is kept; or ( iii) if it is a recognised company or a foreign company to which subparagraph ( ii) does not apply, keep at its principal or registered office in Queensland, " . Section 43 ( 3) . . Omit the words " or, if the company is a recognised company or a foreign company, the branch register of members who are resident in Queensland " and substitute the words " or, if the company keeps a branch register in Queensland of members who are resident in Queensland, that register " . Section 48 ( 1) - Power to hold inquiry I Omit the word " appoint " and substitute the word " authorize " .

Enactment Amended TABLE- continued Amendment Section 48 ( 3) Omit the word " appointed " and substitute the word " authorized " . Section 53 ( 2) - Expenses of inquiry Omit from paragraph ( a) the word " an " and substitute the word " and " . Section 55 ( 5) - Power of Supervisor Omit the expression " the Companies Act 1961- 1981 " and substitute with respect to prospectuses the words " the Companies ( Queensland) Code " . Section 57 ( 1) - Appointment and Insert in provision ( b) after the words " this Act" the words " , of the powers of administrator Companies ( Queensland) Code " . Insert in provision ( c) after the word " under " the words " Part VII of the Companies ( Queensland) Code or " . Section 57 ( 9) . . Omit the expression " Companies Act 1961- 1981 " and substitute the words " Companies ( Queensland) Code " . Section 58 ( 4) - Supervisor may require Omit the expression " the Fourth Schedule to the CompaniesAct meeting for appointment of directors 1961- 1981 " and substitute the words " Schedule 3 to the Companies ( Queensland) Code " . Section 65 ( 2) - Restriction on powers Omit the expression " Companies Act 1961- 1981 " and substitute the of company words " Companies ( Queensland) Code " .