South Australian Co-operative and Community Housing (Housing Co-operatives—Investment Shares) Regulations 2007 (SA)
South Australia
South Australian Co-operative and Community Housing (Housing Co-operatives—Investment Shares) Regulations 2007
under the South Australian Co-operative and Community Housing Act 1991
Contents
Short title
Commencement
Interpretation
Application of regulations
Mandatory rules for subsidised co‑operatives
Minimum number of shares
Application for shares
Share capital account
Share register and provision of information
Share certificates
Redemption of investment shares
Cancellation of investment shares
Restriction on offering shares etc for public subscription
Charges on shares
Presumption relating to the calculation of the statutory price
Forms
Schedule 1—Mandatory rules
Definitions
Authority to issue shares etc
Property in respect of which share issued
Limit on shares
Ineligibility for shares
No entitlements
Receipt
Options
Share register
Share certificates
Redemption of shares
Right of set‑off
Schedule 2—Share register
Schedule 3—Share certificate for investment shares issued by a registered housing co‑operative
Schedule 4—Notice of redemption of shares by a registered housing co‑operative under section 57(2) of the South Australian Co-operative and Community Housing Act 1991
Schedule 5—Application for the redemption of investment shares under section 57(3)(a) of the South Australian Co-operative and Community Housing Act 1991
Schedule 6—Notice of the death of the holder of investment shares in a registered housing co‑operative
Schedule 7—Application by a shareholder to redeem investment shares under section 57(3)(e) of the South Australian Co-operative and Community Housing Act 1991
Schedule 8—Notice of redemption of shares by a registered housing co‑operative under section 57(3) of the South Australian Co-operative and Community Housing Act 1991
Schedule 9—Request for the payment of money in respect of the redemption of shares
Schedule 10—Notice of cancellation of shares by a registered housing co‑operative under section 58(2) of the South Australian Co-operative and Community Housing Act 1991
Schedule 11—Request for the payment of money in respect of the cancellation of shares
Schedule 12—Revocation of regulations
Revocation of regulations
1—Short title
These regulations may be cited as the South Australian Co-operative and Community Housing (Housing Co-operatives—Investment Shares) Regulations 2007.
2—Commencement
These regulations will come into operation on 1 July 2007.
3—Interpretation
In these regulations—
Act means the South Australian Co-operative and Community Housing Act 1991;
business day means any day except—
(a)Saturday, Sunday or a public holiday; or
(b)any other day which falls between 25 December in any year and 1 January in the following year;
registered housing co‑operative means a housing co‑operative registered under the Act.
4—Application of regulations
Subject to any provision of these regulations which expressly applies to a particular kind of housing co‑operative, these regulations apply to a registered housing co‑operative that resolves to issue investment shares under Part 6 of the Act.
5—Mandatory rules for subsidised co‑operatives
Pursuant to section 107(2)(b) of the Act, the rules of a subsidised co‑operative that resolves to issue investment shares must, unless otherwise authorised by the Minister, include the provisions set out in Schedule 1.
6—Minimum number of shares
Pursuant to section 51(4) of the Act, the minimum number of shares that must make up an allotment of investment shares in a subsidised co‑operative is 1 000.
A parcel of shares in a subsidised co‑operative must be constituted by 1 000 shares, or by an exact multiple of 1 000 shares.
Subject to complying with subregulations (1) and (2) (and with section 51(5) of the Act), a registered housing co‑operative may issue more than one parcel of shares to the one person at the one time.
Each parcel of shares must be given a unique identifying number in accordance with rules established by the Minister.
7—Application for shares
An application for the issue of investment shares in a subsidised co‑operative must be in a form determined by the Minister.
If an application for the issue of investment shares in a subsidised co‑operative is approved by the co‑operative, the co‑operative must furnish a copy of the application (as approved) to the Minister in accordance with directions specified by the Minister for the purposes of this provision.
If an application for the issue of investment shares in a registered housing co‑operative is rejected, the co‑operative must, within 5 business days after rejecting the application, return the application to the applicant and provide the applicant with a written statement setting out the grounds on which the application was refused.
8—Share capital account
A subsidised co‑operative to which these regulations apply must ensure that a sufficient amount is maintained in its share capital account in order to keep the account open and to pay any associated account fees.
The amount required under subregulation (1) must be provided by the co‑operative (and not deducted from any amount paid on investment shares in the co‑operative).
The information required under section 52(3)(b) of the Act must be furnished to SAHT in such manner and form as SAHT may require and be accompanied by any document or other material specified by SAHT for the purposes of this provision.
9—Share register and provision of information
A registered housing co‑operative to which these regulations apply—
(a)must keep a share register in the form of Schedule 2 (using a separate page (or pages) for each shareholder); and
(b)must ensure that the share register is kept up‑to‑date in accordance with the instructions contained in that Schedule.
If a co‑operative makes an entry in, or an alteration to, its share register, the co‑operative must, within 5 business days after making the entry or alteration, furnish to SAHT—
(a)a copy of the relevant page (as altered); and
(b)such information as SAHT may require; and
(c)any document or material required by SAHT.
10—Share certificates
A share certificate issued by a registered housing co‑operative must be in the form of Schedule 3.
Pursuant to section 56(2)(c) of the Act, a fee of $10 is prescribed.
11—Redemption of investment shares
A notice of redemption of investment shares by a registered housing co‑operative under section 57(2) of the Act must be in the form of Schedule 4.
An application for the redemption of investment shares by the holder of the shares under section 57(3)(a) of the Act must be in the form of Schedule 5.
A notice of the death of the holder of investment shares for the purposes of section 57(3)(b) of the Act must be in the form of Schedule 6.
Pursuant to section 57(3)(e) of the Act, a registered housing co‑operative must redeem a parcel of investment shares issued by the co‑operative—
(a)if directed to do so by the Minister on the basis that the holder of the shares has breached a provision of a loan agreement between the holder and a lending institution which has been prescribed as a body corporate in whose favour a charge over shares may be created for the purposes of section 60 of the Act; or
(b)subject to complying with any other law, if—
(i)the co‑operative is a subsidised co‑operative which is subject to any procedure to wind up the co‑operative under Part 10 of the Act; and
(ii)the holder of the shares has made application to the co‑operative under Schedule 7.
A notice of redemption of investment shares by a registered housing co‑operative under section 57(3) of the Act must be in the form of Schedule 8.
A request to SAHT for the provision of money under section 57(7) of the Act must be in the form of Schedule 9.
12—Cancellation of investment shares
Pursuant to section 58(2)(b) of the Act, a registered housing co‑operative may cancel a parcel of investment shares issued by the co‑operative—
(a)if—
(i)the co‑operative is satisfied that the holder of the shares was not entitled to the shares, or that the shares were in any other respect invalidly issued; and
(ii)the co‑operative has given the holder of the shares a notice in writing—
(A)setting out the circumstances surrounding the proposed cancellation; and
(B)inviting the holder, within 14 days of receiving the notice, to make written representations to the co‑operative as to why the shares should not be cancelled; or
(b)if the co‑operative has, by unanimous resolution, altered its rules so as not to provide for the further holding of investment shares in the co‑operative (and the Minister has registered the alteration under the Act); or
(c)if—
(i)the holder of the shares—
(A)has failed to comply with section 35 of the Act; or
(B)is in default in respect of the payment of rent to the co‑operative for at least four weeks; and
(ii)the co‑operative has—
(A)given the holder of the shares a notice in writing—
•setting out the circumstances surrounding the proposed cancellation; and
•inviting the holder, within 14 days of receiving the notice, to make written representations to the co‑operative as to why the shares should not be cancelled; and
(B)on a request made by the holder of the shares within 14 days of receiving the notice above—has afforded the holder a reasonable opportunity to make representations (either personally or through a representative) at a general meeting of the co‑operative in respect of the matter; and
(iii)the co‑operative has, by special resolution, resolved to cancel the shares; or
(d)in the event of the winding up of the co‑operative.
A co‑operative must not cancel investment shares under subregulation (1)(a)—
(a)if an application for the validation of the shares has been made under section 61 of the Act and the relevant proceedings have not been determined; or
(b)if to cancel the shares would be inconsistent with an order under section 61 of the Act.
A co‑operative may cancel investment shares under subregulation (1)(c) even though the holder of the shares has remedied the breach or default on which the cancellation is based.
Proceedings under subregulation (1)(c)(ii) may be carried out in conjunction with proceedings under regulation 17 of the South Australian Co-operative and Community Housing (General) Regulations 2007.
A notice of cancellation of investment shares by a registered housing co‑operative under section 58(2) of the Act must be in the form of Schedule 10.
A request to SAHT for the provision of money under section 58(4) of the Act must be in the form of Schedule 11.
13—Restriction on offering shares etc for public subscription
Pursuant to section 59 of the Act, the following modifications and exclusions are prescribed in relation to the application of Chapter 6D of the Corporations Act 2001 of the Commonwealth under the Act:
(a)a reference to ASIC is to be read as a reference to the Minister;
(b)section 736(2) does not apply;
(c)a reference to the Court is to be read as a reference to the Supreme Court.
14—Charges on shares
Pursuant to section 60(1) of the Act—
(a)SAHT is prescribed as a body corporate in whose favour a charge may be created; and
(b)an authorised purpose for the creation of a charge is to provide security for the benefit of SAHT.
Pursuant to section 60(1) of the Act—
(a)Homestart Finance Ltd (ACN 008 272437) (Homestart) is prescribed as a body corporate in whose favour a charge may be created; and
(b)an authorised purpose for the creation of a charge is to provide security for the benefit of Homestart where Homestart has made a loan to the holder of the shares to enable that holder to purchase the shares.
A charge must be created by the execution of a written document and the depositing of the relevant share certificate (or certificates).
15—Presumption relating to the calculation of the statutory price
Pursuant to section 107(2)(l) of the Act, it will be presumed that the capital value of a property at a particular time is the capital value that, at that time, appears (or appeared) in respect of that property on a valuation roll under the Valuation of Land Act 1971.
16—Forms
A form prescribed by a Schedule to these regulations must be completed in accordance with any instructions contained in the relevant Schedule.
Schedule 1—Mandatory rules
1—Definitions
In these rules, unless the contrary intention appears—
the Act means the South Australian Co-operative and Community Housing Act 1991 and includes any regulations made under that Act (as amended or varied from time to time);
share means an investment share issued under the Act and these rules.
Where a term used in these rules has been defined for the purposes of the Act, the term will have the same meaning in these rules as it has in the Act.
2—Authority to issue shares etc
The co‑operative may issue, redeem and cancel shares in accordance with the Act.
3—Property in respect of which share issued
Pursuant to section 51(6) of the Act, shares in the co‑operative will be issued in relation to [Specify whether shares will be issued in relation to (a) particular residential properties of the co‑operative, or (b) the real property of the co‑operative generally.]
4—Limit on shares
The co‑operative must not issue shares to a person if the effect of doing so would mean [include one of the following as appropriate:
(a)in respect of the shares issued in relation to a particular property, that the statutory price for all shares held by the holders of shares in relation to the property (assuming that the shares were all to be immediately redeemed or cancelled) would exceed the capital value of the property at the time of issue;
(b)in respect of shares issued in relation to the real property of the co‑operative generally, that the statutory price for all shares in the co‑operative held by the holder of the shares (assuming that the shares were all to be immediately redeemed or cancelled) would exceed an amount determined in accordance with the following formula:
Where
A is the relevant amount which must not be exceeded
CCV is the combined capital value of all of the real property of the co‑operative
N is the number of tenant‑members of the co‑operative]
[Furthermore, the co‑operative may include other rules limiting a person's ability to purchase shares in the co‑operative.]
5—Ineligibility for shares
The co‑operative may refuse to issue shares to a person if he or she is in default in respect of the payment of rent to the co‑operative for at least 4 weeks.
6—No entitlements
Subject to the Act and these rules, but otherwise notwithstanding any rule or principle of law or equity, the holder of shares in the co‑operative does not have a proprietary interest in the property in respect of which the shares are issued and is not entitled to the transfer of such property by virtue of holding the shares.
Subject to the Act, the co‑operative will not recognise (even if given notice thereof)—
(a)an express, implied or constructive trust in a share;
(b)an equitable, contingent, future or potential interest in a share;
(c)any other potential or actual interest (or purported interest) in a share, other than the absolute right to the share that exists in the holder of the share.
7—Receipt
The co‑operative must issue a receipt when it receives an amount paid in respect of the issue of a parcel of shares.
8—Options
The co‑operative must not issue an option to acquire shares or share warrants.
9—Share register
The share register will be kept in the custody of the following officer, namely (include appropriate description).
Subject to the Act, the person entered in the share register as the holder of specified shares will be the only person recognised by the co‑operative as being entitled to those shares and to exercise a right in respect of those shares.
10—Share certificates
The co‑operative must keep a copy of a share certificate issued under section 55 of the Act.
11—Redemption of shares
Investment shares issued by the co‑operative in relation to a particular residential property may be redeemed by the co‑operative under section 57(2)(a) of the Act if the co‑operative has resolved to demolish a house on the property, or to refurbish or renovate the property to a substantial degree.
The co‑operative must give the holder of the shares at least 4 weeks notice of its intention to redeem the shares.
The notice must be in the form prescribed by the regulations under the Act.
This rule is subject to the operation of section 57 of the Act.
12—Right of set‑off
The co‑operative is entitled to set‑off against an amount payable to the holder of shares on the redemption or cancellation of those shares an amount owed by the holder of the shares to the co‑operative.
Subclause (1) does not apply if the Minister, or a lending institution recognised by the Minister for the purposes of this rule, has, by notice in writing to the co‑operative, indicated that it is claiming a right to receive an amount payable to the holder of the shares on the redemption or cancellation of those shares.
NOTE—
The financial entitlement of a person who holds investment shares in the co‑operative is determined according to the capital value of the property in relation to which the shares are issued. The capital value is determined under the Valuation of Land Act 1971 and is not necessarily the market value of the property. Accordingly, a person who holds shares which have a combined value equal to the capital value of a property has not necessarily made an investment that equals the market value of that property.
[This note should appear as part of these mandatory rules.]
Schedule 2—Share register
Schedule 3—Share certificate for investment shares issued by a registered housing co‑operative
Schedule 4—Notice of redemption of shares by a registered housing co‑operative under section 57(2) of the South Australian Co-operative and Community Housing Act 1991
Schedule 5—Application for the redemption of investment shares under section 57(3)(a) of the South Australian Co-operative and Community Housing Act 1991
Schedule 6—Notice of the death of the holder of investment shares in a registered housing co‑operative
Schedule 7—Application by a shareholder to redeem investment shares under section 57(3)(e) of the South Australian Co-operative and Community Housing Act 1991
Schedule 8—Notice of redemption of shares by a registered housing co‑operative under section 57(3) of the South Australian Co-operative and Community Housing Act 1991
Schedule 9—Request for the payment of money in respect of the redemption of shares
Schedule 10—Notice of cancellation of shares by a registered housing co‑operative under section 58(2) of the South Australian Co-operative and Community Housing Act 1991
Schedule 11—Request for the payment of money in respect of the cancellation of shares
Schedule 12—Revocation of regulations
1—Revocation of regulations
The South Australian Co-operative and Community Housing (Housing Co-operatives—Investment Shares) Regulations 1994 are revoked.
Note—
As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.
Made by the Governor
with the advice and consent of the Executive Council
on 28 June 2007
No 186 of 2007
DFCCS06/034
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