Mortgages (Secondary Market) Act Amendment Act 1984 (Qld)

1228 Q ueeuzlani 'ell ANNO TRICESIMO TERTIO ELIZA ET AE SECUN D AE PLEGINAE PI O . "J6t An Act to am end the M ortgages (Secondary Market) Act 1984 in certain particulars [ASSENTED To 12TH DECEMBER, 1984]

Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 1229 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 Mort- gages (Secondary Market) Act Amendment Act 1984. (2) In this Act the Mortgages (SecondaryMarket) Act 1984 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Mortgages (Secondary Market) Act 1984. 2. Amendment of s. 4. Interpretation . Section 4 of the Principal Act is amended by- (a) omitting the definition "banking corporation" and substituting the following definition:- "banking corporation" means- (a) a bank as defined in section 5 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being; and (b) a bank constituted under a law of a State or Territory of the Commonwealth;" (b) inserting after the definition "manager of mortgages" the fol- lowing definition:- "marketable security" means any promissory note, bill of exchange, certificate of entitlement or other security that conforms with the requirements specified in section 27 (2);"; (c) omitting from the definition "secondary mortgage market" the word "marketable"; (d) in the definition "value of a mortgage", adding at the end thereof the words "in respect of the principal sum secured thereby"; (e) adding at the end of the section the following paragraph:- "In this Act the expression "duly approved by the Commissioner" used in relation to a trust deed means so approved for the purposes of this Act.". 3. Amendment of s. 5. The Board . Section 5 of the Principal Act is amended by- (a) omitting subsection (1) and substituting the following subsection:- "(1) There shall be constituted and maintained a Board consisting of five members."; (b) in subsection (2), omitting the words ", other than the member ex officio,'; (c) in subsection (3), omitting the words ", other than the member ex officio, ".

1230 Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 4. Amendment of s. 6. Term of appointment . Section 6 of the Principal Act is amended by omitting the words ", other than the member ex officio, shall be appointed for a term of three years" and substituting the words " shall be appointed for a term specified in the instrument of his appointment, not exceeding three years, ". 5. Amendment of s. 8. Casual vacancy in Board ' s membership. Section 8 of the Principal Act is amended by- (a) in subsection (1), omitting from paragraph (c) the word "Com- mittee" and substituting the word "Board"; (b) in subsection (3), omitting the words "an appointed" and substituting the expression "a". 6. Amendment of s. 11. Deputy members . Section 1 I of the Principal Act is amended by omitting the words ", other than the member ex officio, ". 7. New s. 11A. The Principal Act is amended by inserting after section 11 the following section:- "11A Secrecy. (1) Every person appointed as a member or deputy member of the Board shall make and subscribe a dec- laration of secrecy in the precribed form before he enters upon the discharge of his functions or duties or the exercise of his powers as such a member or deputy member and shall abide by the declaration made and subscribed by him. (2) The obligation to maintain confidentiality created by or pursuant to subsection (1) does not extend to preventing a member or deputy member of the Board from giving information concerning matters that have come to his knowledge in his capacity as such member or deputy member to any court or tribunal authorized to receive evidence upon oath that is making inquiry to which the information is relevant.". 8. Amendment of s. 17. Registration to allow operation on secondary mortgage market. Section 17 of the Principal Act is amended by- (a) in subsection (1), inserting after the word "Commissioner" the words ", in the prescribed form and manner,"; (b) omitting subsection (2) and substituting the following subsection:- "(2) Upon receipt of an application made under subsection (1) and upon payment of the prescribed fee the Commissioner shall make, or cause to be made, such investigations into matters relevant to the applicant in relation to the registration applied for as he considers necessary and without limiting the generality

Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 1231 hereof, the Commissioner may make, or cause to be made, investigations in respect of the following matters:- (a) in the case of an applicant who is a natural person- (i) whether or not the applicant is or has been an insolvent under administration within the meaning of the Companies (Queensland) Code; (ii) whether or not the applicant has been convicted, either within the State or elsewhere , within the period of 10 years immediately preceding the date on which the application is made, of an offence punishable on conviction with imprisonment for 3 months or more; (iii) whether or not the educational and other qualifi- cations and experience of the applicant are satis- factory having regard to the nature of the duties and functions of a person in connexion with the holding of a registration of the nature applied for; (iv) whether or not there is any reason to believe that the applicant is not of good fame and character; (v) the financial position and business reputation of the applicant; and (vi) whether or not there is any reason to believe that the applicant will not perform the duties and functions of a registered person , having regard to the registration applied for, efficiently , honestly and fairly; or (b) in the case of an applicant that is a body corporate- (i) whether or not the body corporate is under official management , or in the course of being wound up, under the Companies (Queensland ) Code, the Com- panies Act of 1961 or a previous corresponding law of the State or under a corresponding law, or a previous corresponding law of another State or a Territory of the Commonwealth; (ii) whether or not the body corporate is one in respect of whose property a receiver, or a receiver and manager , has been appointed under the Companies (Queensland ) Code, the Companies Act of 1961 or a previous corresponding law of the State or under a corresponding law, or a previous corresponding law, of another State or a Territory of the Commonwealth; (iii) whether or not the body corporate , whether within or outside the State , has entered into a compromise or scheme of arrangement with its creditors being

1232 Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 a compromise or scheme of arrangement that is still in operation; (iv) whether or not the educational and other qualifi- cations and experience of the officers of the body corporate who are to perform duties and functions in connexion with the holding of the registration applied for are satisfactory, having regard to the nature of that registration; (v) the financial position and business reputation of the body corporate; (vi) whether or not there is reason to believe that the officers of the body corporate concerned in the management of the body corporate or who are to perform duties and functions in connexion with the holding of the registration applied for are not of good fame and character; and (vii) whether or not there is reason to believe that the body corporate will not perform the duties and functions of a registered person, having regard to the nature of the registration applied for, efficiently, honestly and fairly."; (c) omitting subsection (3) and substituting the following subsections:- "(3) The Commissioner may require an applicant to furnish him with such further information as the Commissioner considers necessary in relation to the application. (4) Upon completion of the investigations pursuant to subsection (2), the Commissioner shall make a report in respect of the application and of the results of the investigations to the Board and may make, in that report, such recommendations and submissions with respect to the application as he considers warranted, including recommendations as to the approval of the application and as to the conditions and restrictions to which the registration might be subject if approved."; (d) re-numbering the existing subsection (4) as subsection (5) and, in that subsection, inserting after the words "If the Board," the words "having given due consideration to the report and the recommendations and submissions (if any) of the Commissioner made pursuant to subsection (4) in respect of the application of the applicant, having considered the application in relation to the matters referred to in paragraph (a) or (b) of subsection (2), whichever is appropriate, and". 9. Amendment of s. 23. Notification of change in governing body of corporate registered person. Section 23 of the Principal Act is amended by inserting after the words "of its", where they firstly occur, the words "board of directors or other".

Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 1233 10. New s. 26A. The Principal Act is amended by inserting after section 26 the following section:- "26A. Commissioner to inform Minister. Whenever, pursuant to this Act, the Commissioner makes a report, submission or recommendation to the Board he shall furnish to the Minister a copy of the report, submission or recommendation as soon as is practicable thereafter.". 11. Amendment of s. 27. Authorized trustee investment . Section 27 of the Principal Act is amended by- (a) in subsection (2)- (i) omitting from paragraph (d) the word "six" and substituting the word "twelve"; (ii) omitting from paragraph (d) the words ", a member of the Real Estate Institute of Queensland"; (b) in subsection (3)- (i) inserting in paragraph (a), after the words "value of the property" the words "(as shown in the valuations delivered in accordance with paragraph (d) of subsection (2))"; (ii) adding at the end of the Table therein the following words:- "Exceeds 75 per - 100 per centum in the form of centum but does cash or lines of credit with or a not exceed 80 per guarantee given by a banking centum corporation, or partly in one and partly in another of such forms."; (iii) omitting paragraph (b) and substituting the following paragraph:- "(b) a covenant that the proportion borne by the value of each of the mortgages lodged with the registered trustee for the purposes of the trust deed to the value of the property (as shown in the relevant valuation delivered in accordance with paragraph (d) of subsection (2)) on which the mortgage is secured shall not exceed 80 per centum;"; (c) adding at the end of the section the following subsections:- "(4) A trust deed shall not be approved by the Commissioner for the purposes of subsection (2) unless- (a) it expressly provides for the appointment of a registered trustee who has, in the Commissioner's opinion, the appropriate degree of independence, having regard to the functions, duties and powers of the trustee under the trust deed and makes provision that is adequate in the Commissioner's opinion, for

1234 Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 the retirement, removal and replacement of the trustee; (b) it provides for such matters and things as are required to be included therein by the regulations or by the Commissioner. (5) Where the liquidity required of a registered issuer by the trust deed (in accordance with subsection (3)) is in the form of lines of credit with or a guarantee given by a banking corporation, the Commissioner shall not approve of the trust deed for the purposes of subsection (2) unless- (a) the documentation providing for the lines of credit or guarantee is in a form satisfactory to him; (b) the lines of credit or guarantee are or is irrevocable; and (c) the banking corporation is under a duty enforceable at law to honour its obligations in respect of the lines of credit or, as the case may be, the guarantee.". 12. New s. 27A. The Principal Act is amended by inserting after section 27 the following section:- "27A. Restriction on variation of controlled interest rates. Where the rate of interest payable to or chargeable by a mortgagee under a mortgage that has been assigned to a registered trustee for the purposes of a trust deed approved by the Commissioner and that constitutes (wholly or in part) security for marketable securities issued pursuant to the trust deed is a rate that is variable and, in relation to the mortgagee to whom the mortgage was originally given, was subject by law to limitation or control, neither the registered trustee nor any mortgagee under the mortgage subsequent to the registered trustee shall make a variation in the rate of interest such that, if the variation had been made by the mortgagee to whom the mortgage was originally given, the resultant rate of interest would not have been a permissible rate having regard to the limitation or control to which the rate would, in relation to the mortgagee to whom the mortgage was originally given, be subject by law.". 13. Repeal of ss. 30 - 33 and new ss. 30 , 31. The Principal Act is amended by repealing sections 30, 31, 32 and 33 and substituting the following sections:- "30. Certain instruments exempt from stamp duty. (1) If upon production to him of an instrument referred to in this subsection the Commissioner of Stamp Duties is satisfied that- (a) the instrument, being a conveyance or transfer of a mortgage, is a conveyance or transfer of the mortgage to a registered trustee for the purposes of a trust

Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 1235 deed duly approved by the Commissioner for Corporate Affairs; (b) the instrument, being a conveyance or transfer of a mortgage held by a registered trustee for the purposes of a trust deed duly approved by the Commissioner for Corporate Affairs, is a conveyance or transfer of the mortgage from the registered trustee to a person who in relation to that mortgage is the manager of mortgages; (c) the instrument is a conveyance or transfer of an instrument that is by way of security collateral to a mortgage that is the subject of a conveyance or transfer such as is referred to in paragraph (a) or (b); (d) tthoewinhsictrhusmecetniot, nb2e7in( g1)aamppalrikeest;able security, is on'e (e) the instrument is a conveyance or transfer of a marketable security to which section 27 (1) applies; or (f) the instrument is a guarantee given to satisfy the requirements of section 27 (3), the instrument is exempt from stamp duty under the Stamp Act1894-1984. (2) If upon production to him of an instrument, being a trust deed claimed to be one made for the purposes of this Act and to contain a declaration of trusts for the purposes of this Act, the Commissioner of Stamp Duties is satisfied that the claim is true and made in good faith, the instrument is exempt from stamp duty under the Stamp Act 1894-1984. 31. Marketable securities not subject to certain provisions of Stamp Act. (1) The provisions of sections 31C and 31D of the Stamp Act 1894-1984 do not apply in respect of marketable securities to which section 27 (1) applies or in respect of sales and purchases of such marketable securities. (2) The sale, purchase, discounting or acquisition of- (a) a mortgage that, pursuant thereto, is conveyed or transferred to a registered trustee for the purposes of a trust deed duly approved by the Commissioner for Corporate Affairs; or (b) a marketable security to which section 27 (1) applies, shall not be construed to be a transaction that constitutes a loan or discount transaction to which sections 35 to 35H (inclusive) of the Stamp Act 1894-1984 apply. 32. Registered trustee not subject to s. 68A of Stamp Act. Section 68A of the Stamp Act 1894-1984 shall not apply to a registered trustee under a trust deed duly approved by the

1236 Mortgages (Secondary Market) Act Amendment Act 1984, No. 106 Commissioner for Corporate Affairs in respect of debentures being marketable securities to which section 27 (1) applies issued pursuant to the trust deed.". 14. Amendment of s. 35. Payment of procuration fees . Section 35 of the Principal Act is amended by omitting the words "a loan or credit on behalf of a client" and substituting the following words:- "on behalf of a client a loan or credit to be secured by means of a first legal mortgage of land or land and improvements thereon being a mortgage the value of which will not exceed at the time the mortgage is given 80 per centum of the value of the land or land and improvement on which the mortgage is to be secured. This section does not authorize a registered finance-mortgage broker to demand, receive or accept a fee, commission or other amount where he is the lender or provider of the loan or credit that has been negotiated.".