The Commercial Bank of Australia Limited (Merger) Act 1982 (Vic)
Version No. 002
The Commercial Bank of Australia Limited (Merger) Act 1982
No. 9723 of 1982
Version incorporating amendments as at 1 January 2010
TABLE OF PROVISIONS
Section Page
1Short title and commencement
2Definitions
3Savings relating to certain property etc.
4Crown to be bound
5Vesting of undertakings of merging bank and savings bank
6Transitional provision
7Transitional provision
8Assignment and subletting of lease
9Continuity of legal proceedings
10Evidence
11Officers and employees
12Appointment of new trustees
13Company to register holder of shares etc.
14Company charges
15Protection of persons in respect of dealings with excluded assets
16Exemption from duty
__________________
SCHEDULE
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 002
The Commercial Bank of Australia Limited (Merger) Act 1982
No. 9723 of 1982
Version incorporating amendments as at 1 January 2010
An Act to provide for the transfer to Bank of New South Wales of the undertaking of The Commercial Bank of Australia Limited and for the transfer to Bank of New South Wales Savings Bank Limited of the undertaking of The Commercial Savings Bank of Australia Limited and for other purposes.
Preamble
WHEREAS by the Bank of New South Wales Act of 1850 of the State of New South Wales there was incorporated a body politic and corporate in name and in deed by the name "Bank of New South Wales":
AND WHEREAS The Commercial Bank of Australia Limited became on or about 12 February, 1982 a wholly owned subsidiary of Bank of New South Wales in pursuance of action under Part VIB of the Companies Act 1961:
AND WHEREAS The Commercial Savings Bank of Australia Limited is a wholly owned subsidiary of The Commercial Bank of Australia Limited and Bank of New South Wales Savings Bank Limited is a wholly owned subsidiary of Bank of New South Wales:
AND WHEREAS it is expedient in the interest of banking efficiency that the banking business conducted by The Commercial Bank of Australia Limited should be transferred to Bank of New South Wales and the banking business conducted by The Commercial Savings Bank of Australia Limited should be transferred to Bank of New South Wales Savings Bank Limited and that the transfers be effected by Act of Parliament:
BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1Short title and commencement
(1)This Act may be cited as The Commercial Bank of Australia Limited (Merger) Act 1982.
(2)This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
2Definitions
In this Act, unless the contrary intention appears—
the appointed day means the day of coming into operation of this Act;
CBA means The Commercial Bank of Australia Limited;
CBA Savings Bank means The Commercial Savings Bank of Australia Limited;
the continuing bank means the body politic and corporate incorporated by the Bank of New South Wales Act of 1850 of the State of New South Wales;
the continuing savings bank means the corporation incorporated in New South Wales under the name "Bank of New South Wales Savings Bank Limited";
excluded assets means—
(a)documents required by law to be kept by CBA or CBA Savings Bank;
(b)prescribed securities held, immediately before the appointed day, by or on behalf of CBA or CBA Savings Bank otherwise than by way of security;
(c)land held, immediately before the appointed day, by or on behalf of CBA or CBA Savings Bank otherwise than by way of security;
(d)property held, immediately before the appointed day, by CBA upon trust pursuant to subsection (11) of section 180X of the Companies Act 1961; and
(e)property held, immediately before the appointed day, by CBA for the trustees of the CBA Staff Superannuation Fund, the CBA Female Staff Superannuation Fund or the CBA Wages Staff Superannuation Fund;
instrument means an instrument (other than this Act) that creates, evidences, modifies or extinguishes rights or liabilities or would do so if it or a copy thereof were lodged, filed or registered under any act or law and includes any judgment, order or process of a court;
land includes any estate or interest in land, or any interest in respect of land;
legal proceedings includes an arbitration;
liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;
prescribed securities means securities within the meaning of the Securities Industry (Victoria) Code;
propertymeans property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal and without limiting the generality of the foregoing includes choses in action, goodwill, rights, interests and claims of every kind in or to property whether arising from, accruing under, created or evidenced by or the subject of an instrument or otherwise and whether liquidated or unliquidated, actual, contingent or prospective;
rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;
security means a mortgage or charge (whether legal or equitable), debenture, bill of exchange, promissory note, guarantee, indemnity, lien, pledge or other security for the payment of money or for the discharge of any other liability and includes an agreement or undertaking to give or execute any of the foregoing whether upon demand or otherwise;
subsidiary has the same meaning as in the Companies Act 1961;
transferred employé means an employé of CBA who becomes an employé of the continuing bank in pursuance of this Act;
undertaking in relation to CBA or CBA Savings Bank means—
(a)all property of the relevant bank (apart from excluded assets); and
(b)all rights and liabilities of the relevant bank (apart from rights and liabilities relating to excluded assets).
3Savings relating to certain property etc.
Nothing in this Act applies to or in respect of—
(a)any property, rights and liabilities arising from, accruing under, created or evidenced by or the subject of any of the instruments described in the Schedule; or
(b)any of those instruments.
4Crown to be bound
This Act binds the Crown.
5Vesting of undertakings of merging bank and savings bank
(1)On the appointed day—
(a)the undertaking of CBA is vested in the continuing bank; and
(b)the undertaking of CBA Savings Bank is vested in the continuing savings bank.
(2)On and after the appointed day—
(a)a reference to CBA in any instrument made, passed or executed before that day shall (except to the extent that the instrument relates to an excluded asset and unless the context otherwise requires) be read and construed as a reference to the continuing bank;
(b)a reference to CBA Savings Bank in any instrument made, passed or executed before that day shall (except to the extent that the instrument relates to an excluded asset and unless the context otherwise requires) be read and construed as a reference to the continuing savings bank; and
(c)a reference to the holder for the time being of a particular office (other than the office of a director, secretary or auditor) within CBA or CBA Savings Bank in any instrument made or executed before that day shall be read and construed as a reference to the person for the time being holding office as Chief General Manager of the continuing bank or such other officer of the continuing bank or the continuing savings bank as is designated from time to time by the Chief General Manager of the continuing bank or by any other officer acting under delegation from him.
(3)On and after the appointed day—
(a)any place of business of CBA wherever located shall be deemed to be a place of business of the continuing bank; and
(b)any place of business of CBA Savings Bank wherever located shall be deemed to be a place of business of the continuing savings bank.
(4)Without prejudice to the generality of the preceding provisions of this section but notwithstanding anything to the contrary in any other Act or law, where any registered estate or interest in land under the operation of the Transfer of Land Act 1958 is by virtue of this Act vested in the continuing bank or in the continuing savings bank—
(a)the continuing bank shall be deemed to be the registered proprietor of any such estate or interest of which CBA is the registered proprietor; and
(b)the continuing savings bank shall be deemed to be the registered proprietor of any such estate or interest of which CBA Savings Bank is the registered proprietor—
and the estate or interest may be dealt with accordingly.
(5)Where for any reason—
(a)a liability to CBA immediately before the appointed day remains a liability to CBA on or after that day; or
(b)a liability to CBA Savings Bank immediately before the appointed day remains a liability to CBA Savings Bank on or after that day—
CBA or CBA Savings Bank, as the case may be, shall have and may enforce the same rights in respect of that liability (including rights under any security relating thereto) as if this Act had not been passed.
6Transitional provision
Without prejudice to the generality of other provisions of this Act the following provisions shall have effect on and after the appointed day—
(a)an instruction, order, direction, mandate or authority given to CBA and subsisting immediately before the appointed day (not being one relating to an excluded asset) shall be deemed to have been given to the continuing bank;
(b)an instrument given or addressed to CBA on or after the appointed day (not being an instrument relating to an excluded asset) shall be deemed to have been given or addressed to the continuing bank;
(c)a security held by CBA as security for a debt or other liability to CBA incurred before the appointed day shall be available to the continuing bank as security for the discharge of that debt or liability and, where the security extends to future or prospective debts or liabilities, shall be available as security for the discharge of debts owed to or liabilities to the continuing bank which are incurred on or after the appointed day; and in relation to a security the continuing bank shall be entitled to all the rights and priorities (howsoever arising) and shall be subject to all liabilities to which CBA would have been entitled or subject if this Act had not been passed;
(d)all the rights and liabilities of CBA as bailee of documents or chattels shall be transferred to and assumed by the continuing bank;
(e)a negotiable instrument or order for payment of money which before, on or after the appointed day is drawn on or given to or accepted or endorsed by CBA or payable at a place of business of CBA shall have the same effect on and after the appointed day as if it had been drawn on or given to or accepted or endorsed by the continuing bank instead of CBA or was payable at the place of business of the continuing bank which the first mentioned place of business is by this Act deemed to be;
(f)the relationship between CBA and a customer or depositor shall become the same relationship between the continuing bank and the customer or depositor and the same rights and liabilities including the rights of set-off shall exist between the continuing bank and the customer or depositor as existed immediately before the appointed day between CBA and the customer or depositor;
(g)all contracts, agreements, conveyances, deeds, leases, licences, instruments and undertakings (whether or not in writing) entered into by, made with, given to or by or addressed to CBA (whether alone or with any other person) before the appointed day and in effect immediately before the appointed day shall (except to extent that they relate to an excluded asset), to the extent that they were previously binding on and enforceable by, against or in favour of CBA, be binding on and enforceable by, against or in favour of the continuing bank as fully and effectually in every respect as if, instead of CBA, the continuing bank had been the person by whom they were entered into, with whom they were made or to or by whom they were given or addressed as the case may be;
(h)no legal proceedings commenced before the appointed day by, against or in favour of CBA shall abate or be otherwise prejudiced by reason of this Act;
(i)nothing effected by this Act—
(i)shall be regarded as placing CBA or the continuing bank in breach of contract or confidence or as otherwise making either of them guilty of a civil wrong;
(ii)shall be regarded as placing either of them in breach of any Act or other law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(iii)shall release any surety wholly or in part from all or any of his obligations; and
(j)nothing done or suffered by CBA or the continuing bank pursuant to this Act (not being something effected by this Act)—
(i)shall be regarded as a breach of contract or confidence or otherwise as a civil wrong;
(ii)shall be regarded as a breach of any Act or other law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(iii)shall release any surety wholly or in part from all or any of his obligations—
if it would not have had that effect had it been done or suffered by CBA in the absence of this Act.
7Transitional provision
Without prejudice to the generality of other provisions of this Act the following provisions shall have effect on and after the appointed day—
(a)an instruction, order, direction, mandate or authority given to CBA Savings Bank and subsisting immediately before the appointed day (not being one related to an excluded asset) shall be deemed to have been given to the continuing savings bank;
(b)an instrument given or addressed to CBA Savings Bank on or after the appointed day (not being an instrument relating to an excluded asset) shall be deemed to have been given or addressed to the continuing savings bank;
(c)a security held by CBA Savings Bank as security for a debt or other liability to CBA Savings Bank incurred before the appointed day shall be available to the continuing savings bank as security for the discharge of that debt or liability and, where the security extends to future or prospective debts or liabilities shall be available as security for the discharge of debts owed to or liabilities to the continuing savings bank which are incurred on or after the appointed day; and in relation to a security the continuing savings bank shall be entitled to all the rights and priorities (howsoever arising) and shall be subject to all liabilities to which CBA Savings Bank would have been entitled or subject if this Act had not been passed;
(d)all the rights and liabilities of CBA Savings Bank as bailee of documents or chattels shall be transferred to and assumed by the continuing savings bank;
(e)a negotiable instrument or order for payment of money which before, on or after the appointed day is drawn on or given to or accepted or endorsed by CBA Savings Bank or payable at a place of business of CBA Savings Bank shall have the same effect on and after the appointed day as if it had been drawn on or given to or accepted or endorsed by the continuing savings bank instead of CBA Savings Bank or was payable at the place of business of the continuing savings bank which the first mentioned place of business is by this Act deemed to be;
(f)the relationship between CBA Savings Bank and a customer or depositor shall become the same relationship between the continuing savings bank and the customer or depositor and the same rights and liabilities including the rights of set-off shall exist between the continuing savings bank and the customer or depositor as existed immediately before the appointed day between CBA Savings Bank and the customer or depositor;
(g)all contracts, agreements, conveyances, deeds, leases, licences, instruments and undertakings (whether or not in writing) entered into by, made with, given to or by or addressed to CBA Savings Bank (whether alone or with any other person) before the appointed day and in effect immediately before the appointed day shall (except to the extent that they relate to an excluded asset), to the extent that they were previously binding on and enforceable by, against or in favour of CBA Savings Bank, be binding on and enforceable by, against or in favour of the continuing savings bank as fully and effectually in every respect as if, instead of CBA Savings Bank, the continuing savings bank had been the person by whom they were entered into, with whom they were made or to or by whom they were given or addressed, as the case may be;
(h)no legal proceedings commenced before the appointed day by, against or in favour of CBA Savings Bank shall abate or be otherwise prejudiced by reason of this Act;
(i)nothing effected by this Act—
(i)shall be regarded as placing CBA Savings Bank or the continuing savings bank in breach of contract or confidence or as otherwise making either or them guilty of a civil wrong;
(ii)shall be regarded as placing either of them in breach of any Act or other law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(iii)shall release any surety wholly or in part from all or any of his obligations; and
(j)nothing done or suffered by CBA Savings Bank or the continuing savings bank pursuant to this Act (not being something effected by this Act)—
(i)shall be regarded as a breach of contract or confidence or otherwise as a civil wrong;
(ii)shall be regarded as a breach of any Act or other law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(iii)shall release any surety wholly or in part from all or any of his obligations—
if it would not have had that effect had it been done or suffered by CBA Savings Bank in the absence of this Act.
8Assignment and subletting of lease
(1)Where, under the provisions of a lease, licence or other contract or agreement CBA or CBA Savings Bank has rights in respect of the occupation or use of land, being an excluded asset, those rights may, notwithstanding that there has been no assignment, transfer, underletting or other disposition by CBA or CBA Savings Bank, be exercised by the continuing bank or the continuing savings bank, as the case may be.
(2)For the purposes of a lease, licence or other contract or agreement relating to the occupation or use of land, CBA or CBA Savings Bank does not part with possession of land by permitting the continuing bank or the continuing savings bank, as the case may be, to exercise rights under subsection (1) in respect of the land.
9Continuity of legal proceedings
(1)Legal proceedings to which CBA or CBA Savings Bank was a party immediately before the appointed day may be continued by or against the continuing bank or the continuing savings bank, as the case may be.
(2)A judgment, order or award obtained by or against CBA or CBA Savings Bank in legal proceedings commenced before the appointed day may be enforced by or against the continuing bank or the continuing savings bank, as the case may be.
10Evidence
(1)Documentary or other evidence which would have been admissible for or against the interests of CBA or CBA Savings Bank if this Act had not been passed shall be admissible for or against the interests of the continuing bank or the continuing savings bank, as the case may be.
(2)Notwithstanding the transfer of the undertakings of CBA and CBA Savings Bank to the continuing bank and the continuing savings bank, the provisions of the Evidence Act 2008 apply with respect to the books of accounts of CBA and CBA Savings Bank and to entries made in those books of account before the appointed day as if those books of account and entries were business records.
* * * * *
11Officers and employees
Notwithstanding any other provision of this Act—
(a)on the appointed day each employé of CBA shall cease to be an employé of CBA and shall become an employé of the continuing bank but for the purposes of every Act or other law, award, determination, contract and agreement relating to the employment of each such employé his contract of employment shall be deemed to be unbroken and the period of his service with CBA shall be deemed to have been a period of service with the continuing bank;
(b)the terms and conditions of the employment of each transferred employé with the continuing bank shall—
(i)on the appointed day (and thereafter until varied) be identical with the terms and conditions of his employment with CBA immediately before the appointed day and be capable of variation in the same manner as they were immediately before that day; and
(ii)subject to any Act or other law, award or determination relating to those terms and conditions, also be capable of variation in the same manner as the general terms and conditions of employment of other persons employed by the continuing bank are capable of variation;
(c)a transferred employé shall not be entitled to receive any payment or other benefit by reason only of his ceasing by virtue of this Act to be an employé of CBA;
(d)nothing in this Act other than paragraph (c) of this section affects rights or liabilities under any provident, benefit, superannuation or retirement fund or scheme relating to employés of CBA; and
(e)a director, secretary or auditor of CBA or CBA Savings Bank does not by virtue of this Act become a director, secretary or auditor of the continuing bank or the continuing savings bank.
12Appointment of new trustees
(1)The continuing bank may at any time, within three months after the appointed day, by instrument executed under its seal declare that a corporation which is a subsidiary of the continuing bank and is named in the instrument as new trustee of such trusts subsisting immediately before the appointed day as are specified in the instrument is appointed in the place of another corporation which was, immediately before that day, a subsidiary of the CBA and is named in the instrument as the retiring trustee of those trusts.
(2)Upon any such instrument being so executed and notice thereof being published in the Government Gazette—
(a)the corporation named therein as the retiring trustee shall be wholly discharged from the trusts therein specified;
(b)the corporation named therein as new trustee shall be trustee of those trusts in the place of the corporation named therein as retiring trustee and shall have the same powers, authorities and discretions in relation to each such trust as the retiring trustee had immediately before being discharged; and
(c)all property subject to the said trusts and vested in the retiring trustee shall be vested in the corporation named therein as new trustee.
(3)Any discharge or appointment of a trustee and any vesting of property by virtue of this section shall have effect notwithstanding anything to the contrary in any instrument or in any other Act or law.
(4)Subject to subsection (5) but notwithstanding anything to the contrary in any other Act or law, where any registered estate or interest in land under the operation of the Transfer of Land Act 1958 is by virtue of this section vested in a corporation, that corporation shall be deemed to be the registered proprietor of that estate or interest and the estate or interest may be dealt with accordingly.
(5)An estate or interest referred to in subsection (4) shall not vest until a copy of the instrument referred to in subsection (1) has been lodged with the Registrar of Titles, who is hereby authorized and required to make the same recordings as would be appropriate under section 58 of the Trustee Act 1958.
(6)In this section trustee has the same meaning as in the Trustee Act 1958 but extends to a nominee, a custodian trustee and a person charged with the management or administration of property.
13Company to register holder of shares etc.
(1)Where prescribed securities are by virtue of this Act vested in the continuing bank, the continuing savings bank or a subsidiary of the continuing bank, a certificate signed by the Chief General Manager of the continuing bank or by an officer acting under delegation from him stating that the prescribed securities have so vested shall, notwithstanding any other Act or law or the provisions of any instrument, be deemed to be a sufficient duly stamped instrument of transfer of those prescribed securities.
(2)Subsection (1) applies only to and in respect of prescribed securities—
(a)which, when vested in the continuing bank or the continuing savings bank, will be held by way of security; or
(b)which are vested in a subsidiary of the continuing bank by the operation of section 12.
14Company charges
If the provisions of subsection (1) of section 206 of the Companies Act 1981 of the Commonwealth apply as laws of Victoria on the appointed day, those provisions shall be deemed to have been complied with in respect of all charges of which the continuing bank or the continuing savings bank becomes the holder by virtue of this Act if there is lodged in the manner specified in paragraph (a) of that subsection a certificate signed by the Chief General Manager of the continuing bank or by an officer acting under delegation from him stating that by virtue of this Act the undertaking of CBA has become vested in the continuing bank and the undertaking of CBA Savings Bank has become vested in the continuing savings bank.
15Protection of persons in respect of dealings with excluded assets
(1)No person dealing—
(a)with the continuing bank or CBA (in any capacity whatsoever); or
(b)with the continuing savings bank or CBA Savings Bank (in any capacity whatsoever)—
nor the Registrar of Titles, nor any other person registering or certifying title to land or having the power or duty to examine or receive evidence as to title to land, shall, in respect of any dealing or transaction entered into or purporting to be entered into by the continuing bank, the continuing savings bank, CBA or CBA Savings Bank be concerned to see or enquire into whether any property the subject of the dealing or transaction (whether or not that property is or includes an estate or interest in land) is or is not an excluded asset, or be affected by any notice, express, implied or constructive, that any such property is or is not an excluded asset.
(2)If any dealing or transaction is entered into by the continuing bank or the continuing savings bank with any person, in relation to or in connexion with an excluded asset, it shall be deemed in favour of that person and any person claiming through or under him that the continuing bank or the continuing savings bank, as the case may be, has full power and authority to enter into that dealing or transaction as if the excluded asset had vested in the continuing bank or the continuing savings bank, as the case may be, under this Act.
(3)If any dealing or transaction is entered into by CBA or CBA Savings Bank with any person, in relation to or in connexion with an asset which has vested in the continuing bank or the continuing savings bank, as the case may be, under this Act, it shall be deemed in favour of that person and any person claiming through or under him that CBA or CBA Savings Bank, as the case may be, has full power and authority to enter into that dealing or transaction as if the asset were an excluded asset.
(4)Nothing in this section affects the liability of the continuing bank, the continuing savings bank, CBA or CBA Savings Bank to any other of them in respect of anything done, or purporting to have been done, by the continuing bank, the continuing savings bank, CBA or CBA Savings Bank, as the case may be in relation to or in connexion with an excluded asset or any other property.
16Exemption from duty
Notwithstanding anything to the contrary in any other Act or law, no duty of any kind is chargeable or payable on any instrument, certificate or document or in respect of any act or transaction executed, done, suffered or entered into for the purposes of this Act or of any corresponding law of the Commonwealth or of another State or Territory.
__________________
SCHEDULE
Deed dated 27 June 1978 made between the continuing bank of the one part and CBA of the other part entitled "Equity Participants' Deed".
Agreement dated 27 June 1978 made between the continuing bank and CBA of the one part and Chase-N.B.A. Group Limited of the other part entitled "Management Agreement".
Agreement dated 27 June 1978 made between Qantas Airways Limited of the one part and the continuing bank and CBA of the other part entitled "Equipment Purchase Agreement".
Deed of Assignment dated 27 June 1978 between Qantas Airways Limited of the one part and the continuing bank and CBA of the other part.
Agreement dated 27 June 1978 made between the continuing bank and CBA of the first part, Government Insurance Office of New South Wales of the second part and Qantas Airways Limited of the third part entitled "Loan Agreement".
Deed of Lease dated 27 June 1978 made between the continuing bank and CBA of the one part and Qantas Airways Limited of the other part.
═══════════════
ENDNOTES
1. General Information
The Commercial Bank of Australia Limited (Merger) Act 1982 was assented to on 1 June 1982 and came into operation on 1 October 1982: Government Gazette 8 September 1982 page 2969.
2. Table of Amendments
This Version incorporates amendments made to The Commercial Bank of Australia Limited (Merger) Act 1982 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Transfer of Land (Computer Register) Act 1989, No. 18/1989
Assent Date: 16.5.89 Commencement Date: 3.2.92: Government Gazette 18.12.91 p. 3488 CurrentState: All of Act in operation
Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009
Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 56) on 1.1.10: s. 2(2) CurrentState: This information relates only to the provision/s amending The Commercial Bank of Australia Limited (Merger) Act 1982
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
3. Explanatory Details
No entries at date of publication.
0
0
0