Westpac and Bank of Melbourne (Challenge Bank) Act 1996 (Vic)
Version No. 003
Westpac and Bank of Melbourne (Challenge Bank) Act 1996
No. 26 of 1996
Version incorporating amendments as at 1 January 2010
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purpose
2Commencement
3Definitions
4Act to bind Crown
5Territorial application of Act
PART 2—VESTING OF UNDERTAKING OF CHALLENGE IN WESTPAC
Division 1—Vesting
6Vesting of undertaking
7Effect of contracts and instruments
8Transitional provisions
9Legal proceedings
10Amendment of Court documents where Westpac erroneously made a party
11Evidence
12Construction of references
Division 2—Repealed
13, 14Repealed
PART 3—VESTING OF TRANSFERRING UNDERTAKING IN BANK OF MELBOURNE
15Vesting of undertaking
16Effect of contracts and instruments
17Transitional provisions
18Transfer of Challenge Victorian staff to Bank of Melbourne
19Business name
20Legal proceedings
21Amendment of Court documents where Bank of Melbourne erroneously made a party
22Evidence
23Construction of references
24Repeal of provisions consequential on operation of this Part
PART 4—Repealed
25–34Repealed
PART 5—GENERAL
35Payment of amount in lieu of State taxes and charges
36Consumer Credit (Victoria) Act 1995
37Effect of things done under this Act
38Service of documents
39Excluded assets
40Certificates may be issued
41Interests in land in the Register Book
42Action by Registrar of Titles or Registrar-General
43Certificates in relation to charges
44Other property
45Certificates conclusive
46Application of banking laws
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SCHEDULE—Repealed
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 003
Westpac and Bank of Melbourne (Challenge Bank) Act 1996
No. 26 of 1996
Version incorporating amendments as at 1 January 2010
Preamble[1]
(1)Challenge Bank Limited A.C.N. 009 230 433 ("Challenge") is a company incorporated in Western Australia and is a company within the meaning of the Corporations Law and is a company limited by shares.
(2)Westpac Banking Corporation A.R.B.N. 007 457 141 ("Westpac") is a body corporate constituted by an Act of the Parliament of New South Wales.
(3)Westpac carries on the business of banking throughout Australia and elsewhere in the world, and Challenge carries on the business of banking principally in Western Australia and Victoria but also in other States and Territories of Australia.
(4)On 21 December 1995 Westpac became the beneficial owner of the whole of the issued share capital of Challenge and since that date Challenge has been a wholly owned subsidiary of Westpac.
(5)Under the conditions imposed on the authority of Challenge to carry on banking business in Australia Challenge is required to surrender that authority.
(6)Accordingly it is necessary and expedient to transfer the banking business of Challenge to Westpac.
(7)On 22 November 1995 consent was given pursuant to section 63 of the Banking Act 1959 of the Commonwealth to the amalgamation of the banking business of Challenge with that of Westpac.
(8)Westpac and Bank of Melbourne Limited A.C.N. 007 270 448 ("Bank of Melbourne") have agreed that part of the banking business of Challenge will be vested in Bank of Melbourne.
(9)On 23 May 1996 consent was given pursuant to section 63 of the Banking Act 1959 of the Commonwealth to the acquisition by the Bank of Melbourne of part of the banking business of Challenge.
(10)It is expedient to enact legislation to provide for the vesting of the banking business of Challenge in Westpac and the vesting of part of that business in Bank of Melbourne.
The Parliament of Victoria therefore enacts as follows:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is—
(a)to provide for the transfer to Westpac Banking Corporation of the banking business of Challenge Bank Limited;
(b)to provide for the transfer to Bank of Melbourne Limited of part of that business and for other purposes.
2Commencement
(1)Part 1 and section 35 come into operation on the day on which this Act receives the Royal Assent.
(2)Division 1 of Part 2 and Part 5 (except section 36) come into operation on a day to be proclaimed.
(3)Division 2 of Part 2 comes into operation on a day to be proclaimed.
(4)Part 3 comes into operation on a day to be proclaimed.
* * * * *
(6)Section 36 comes into operation on a day to be proclaimed.
3Definitions[2]
In this Act—
Bank of Melbourne means Bank of Melbourne Limited A.C.N. 007 270 448;
Bank of Melbourne agreement means the sale and purchase agreement entered into before the commencement time between Westpac and Bank of Melbourne relating to the acquisition by Bank of Melbourne from Westpac of part of the business and property of Challenge (however described);
Bank of Melbourne excluded asset means an asset that, under the Bank of Melbourne agreement, is an excluded asset;
Bank of Melbourne vesting time—
(a)in Part 2, means—
(i)the moment after the commencement time, if Part 3 is in operation at that time; or
(ii)if Part 3 is not in operation at that time, the date of commencement of section 25;
(b)in Part 3, means the moment after the commencement time; and
(c)in Part 4, means the date of commencement of section 25;
Challenge means Challenge Bank Limited A.C.N. 009 230 433;
Challenge employee
(a)in Part 3, means a person employed by Challenge immediately before the commencement time; and
(b)in Part 4, means a person employed by Challenge in Victoria immediately before the Bank of Melbourne vesting time within the meaning of that Part;
Chief Executive Officer, in relation to a bank, means the officer in charge of the day to day management of the affairs of that bank or a person appointed by that officer in writing;
commencement time means 12 noon Eastern Standard Time on the day on which Division 1 of Part 2 comes into operation;
liabilities includes duties, obligations and incidents of every description, whether actual, contingent or prospective, but does not include any duty, obligation or incident relating to an excluded asset;
property means property and assets of every description, and includes securities, rights and powers of every description;
register includes a book of registry and an index relating to registration;
security includes a mortgage (whether legal or equitable), charge, debenture, bill of exchange, promissory note, guarantee, lien, pledge or other means of securing the payment of a debt, whether present or future, or the discharge of an obligation or liability, whether actual or contingent;
transferring undertaking—
(a)in Part 2—
(i)has the same meaning as in Part 3, if Part 3 is in operation at the commencement time; or
(ii)if Part 3 is not in operation at that time, has the same meaning as in Part 4;
(b)in Part 3, means that part of the undertaking of Challenge that vested in Westpac under Part 2 and that, under the Bank of Melbourne agreement, is the transferring undertaking for the purposes of Part 3;
(c)in Part 4, means that part of the business and property of Westpac that, under the Bank of Melbourne agreement, is the transferring undertaking for the purposes of Part 4;
undertaking of Challenge means the business and all of the property of Challenge (except any Westpac excluded assets and any right or power of Challenge relating to any Westpac excluded assets) vested in or belonging to or held by Challenge immediately before the commencement time and all of the liabilities to which Challenge is subject immediately before that time;
Westpac means Westpac Banking Corporation A.R.B.N. 007 457 141;
Westpac excluded asset means—
(a)any document required to be kept by Challenge under the Corporations Law or any other law;
(b)shares held by Challenge in—
(i)CBL Financial Services Ltd
A.C.N. 009 340 390;
(ii)CBL Securities Ltd
A.C.N. 009 124 341;
(iii)Challase Pty Ltd A.C.N. 059 339 641;
(iv)Challenge Finance Limited
A.C.N. 000 032 735;
(v)Challenge Funds Management Ltd A.C.N. 009 065 990;
(vi)Challenge Information Technology Pty Ltd A.C.N. 007 258 488;
(vii)Challenge Insurance Services (Agency) Pty Ltd A.C.N. 009 086 444;
(viii)Cold Storage Construction Pty Ltd A.C.N. 001 122 005;
(ix)Herston Pty Ltd A.C.N. 009 041 650;
(x)National Permanent Management Services Pty Ltd A.C.N. 009 076 653;
(xi)Olsona Ltd A.C.N. 003 409 756;
(xii)Westman Enterprises Pty Ltd A.C.N. 008 915 099;
(c)units held by Challenge in National Permanent Property Trust, a trust created by a deed dated 21 August 1982 between Herston Pty Ltd and National Permanent Funds Management Pty Ltd;
(d)the Challenge logo registered under the Trade Marks Act 1995 of the Commonwealth as a trade mark in classes 16, 36 and 39 under numbers A486912, A486911 and A486910 respectively;
(e)the trade mark "Challenge" registered under the Trade Marks Act 1995 of the Commonwealth as a trademark in class 36 under number A533638; and
(f)such other assets as are listed in a certificate signed by the Chief Executive Officer of Westpac and received by the Treasurer before the commencement day.
4Act to bind Crown
This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
5Territorial application of Act
(1)This Act applies both within and outside Victoria.
(2)This Act applies outside Victoria to the full extent of the extra-territorial legislative power of Victoria.
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PART 2—VESTING OF UNDERTAKING OF CHALLENGE IN WESTPAC
Division 1—Vesting
6Vesting of undertaking
(1)At the commencement time, the undertaking of Challenge is by virtue of this Part divested from Challenge and vested in Westpac.
(2)Subsection (1) has no effect in relation to the employment of Challenge employees.
7Effect of contracts and instruments
(1)All contracts, agreements, conveyances, deeds, leases, licences and other instruments or undertakings entered into by or made with, or addressed to, Challenge (whether alone or with any other person) in force immediately before the commencement time are on and after that time to the extent that they were immediately before that time binding upon and enforceable by, or against, Challenge, binding and of full force and effect in every respect in favour of, or against, Westpac, as fully and effectually as if, instead of Challenge, Westpac had been a party to them or bound by them or entitled to the whole or any portion of the benefit of them.
(2)Subsection (1) does not apply to any contract, agreement, conveyance, deed, lease, licence, instrument or undertaking relating to—
(a)a Westpac excluded asset; or
(b)the employment of a Challenge employee; or
(c)a provident, benefit, superannuation or retirement fund relating to Challenge employees.
(3)A director, secretary or auditor of Challenge is not by reason only of this Part a director, secretary or auditor (as the case may be) of Westpac.
(4)Subsection (1) ceases to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time.
8Transitional provisions
(1)Subject to subsection (3) and without limiting sections 6 and 7, the following provisions have effect in relation to the banking business of Challenge—
(a)the relationship between Challenge and a customer or depositor of that bank is, after the commencement time, between Westpac and that customer or depositor, and gives rise to the same rights and the same duties (including rights of set-off) as would have existed at that time if that relationship had been between Westpac and the customer or depositor, and so that any instruction, order, direction, mandate or authority given by that customer or depositor to Challenge and subsisting on or given after the commencement time is, unless and until revoked or cancelled, deemed to have been given to Westpac;
(b)any security held by Challenge as security for the payment of the debts or liabilities (whether present or future, certain or contingent) of any person is by virtue of this Part transferred to Westpac at the commencement time, and is to be held by and be available to Westpac as security for the payment of those debts and liabilities to Westpac (but not, by reason only of this Part, as security for any debt or liability of that person to Westpac existing immediately before that time) and, where the security extends to future advances to, or to future liabilities of, that person, the security shall, after that time, subject to any agreement between Westpac and that person, be held by and be available to Westpac as security for future advances to that person by, and future liabilities of that person to, Westpac, to the same extent to which future advances by, or liabilities to, Challenge were secured immediately before that time;
(c)Westpac is, in relation to any security transferred under this Part and the money secured by the security, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been entitled and subject to, if the security had continued to be held by Challenge;
(d)the custody of any document, goods or thing held by Challenge as bailee for any other person at any office or branch or agency of Challenge is by virtue of this Part transferred to Westpac at the commencement time, and the rights, duties and liabilities of Challenge under any contract of bailment relating to the document, goods or thing are transferred at that time to Westpac;
(e)any negotiable instrument or order for the payment of money, whether drawn, given, accepted or endorsed before, at or after the commencement time, which is expressed to be drawn by, drawn on, or given to, or accepted or endorsed by Challenge, or payable at any place of business of Challenge, has the same effect after the commencement time as if it had been drawn by, drawn on, or given to, or accepted or endorsed by, Westpac, or payable at the same place of business of Westpac;
(f)any information held immediately before the commencement time by Challenge relating to a customer or depositor of that bank is available to and may be used by Westpac after the commencement time.
(2)Despite subsection (1) and sections 6 and 7—
(a)Westpac is, in relation to any security held by it over any money on deposit with Challenge immediately before the commencement time, entitled to the same rights and priorities and subject to the same liabilities as it would have been had the money on deposit continued to be held by Challenge; and
(b)Westpac is, in relation to any security held by Challenge immediately before the commencement time over money on deposit with Westpac, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been had the security continued to be held by Challenge.
(3)Subsections (1) and (2) cease to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time.
9Legal proceedings
(1)This section applies to—
(a)any action, arbitration or proceeding or cause of action, arbitration or proceeding which is at the commencement time pending or existing by, against, or in favour of, Challenge; and
(b)any cause of action, arbitration or proceeding by, against, or in favour of, Challenge, which arises after the commencement time in respect of a contract made by Challenge before the commencement time or which arises in respect of anything done or omitted to be done by Challenge before the commencement time—
but does not apply to any action, arbitration or proceeding or to any cause of action relating to—
(c)a Westpac excluded asset;
(d)the employment of a Challenge employee; or
(e)a provident, benefit, superannuation or retirement fund relating to Challenge employees.
(2)Any action, arbitration or proceeding and any cause of action, arbitration or proceeding to which this section applies, is not abated or discontinued or in any way prejudicially affected by reason of this Part, and may, without any further act, deed or instrument other than any appropriate amendment of the records of the relevant court or tribunal, be prosecuted and continued and enforced by or against Westpac, in its own name as and when it might have been prosecuted, continued and enforced by or against Challenge if this Act had not been enacted.
(3)Despite subsection (2), the court, tribunal or other person making or entering any judgment, order or award for the payment of any sum of money, whether ascertained or to be ascertained, against Westpac in any legal or arbitral proceeding to which this section applies may, at the request of any party in whose favour the judgment, order or award is being made or entered, make or enter the judgment, order or award against both Challenge and Westpac, and the judgment, order or award may, when so made or entered, be enforced against both Challenge and Westpac.
(4)Subsections (2) and (3) cease to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time.
10Amendment of Court documents where Westpac erroneously made a party
(1)Any party to any action, arbitration or proceeding relating to a Westpac excluded asset or a Challenge employee is entitled at any stage to seek leave to amend any writ, pleading or other document filed by the party in the action, arbitration or proceeding by substituting for the name of Westpac the name of Challenge as party.
(2)No order is to be made against any party so amending to pay to Westpac or to Challenge any costs occasioned by that amendment.
(3)The action, arbitration or proceeding is to be continued as if Challenge had originally been made a party to it.
11Evidence
(1)Any book or document which if this Part had not been enacted would have been evidence in respect of any matter for or against Challenge is, subject to this Part, after the commencement time, to be admissible in evidence in respect of the same matter for or against Westpac.
(2)Without limiting subsection (1), the books of account of Challenge are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by Westpac.
* * * * *
12Construction of references
Subject to this Act, if any written law (other than this Act) or any document, whenever made or executed or any register established or kept under any Act contains any reference express or implied to Challenge, the reference is, after the commencement time to be read and construed as a reference to Westpac, unless the context otherwise requires.
* * * * *
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PART 3—VESTING OF TRANSFERRING UNDERTAKING IN BANK OF MELBOURNE
15Vesting of undertaking
At the Bank of Melbourne vesting time the transferring undertaking is by virtue of this Part divested from Westpac and vested in Bank of Melbourne.
16Effect of contracts and instruments
(1)All contracts, agreements, conveyances, deeds, leases, licences and other instruments or undertakings entered into by or made with, or addressed to, Challenge (whether alone or with any other person) in force immediately before the Bank of Melbourne vesting time are on and after that time to the extent that they were immediately before the commencement time binding upon and enforceable by, or against, Challenge, binding and of full force and effect in every respect in favour of, or against, Bank of Melbourne, as fully and effectually as if, instead of Challenge, Bank of Melbourne had been a party to them or bound by them or entitled to the whole or any portion of the benefit of them.
(2)Subsection (1) does not apply to any contract, agreement, conveyance, deed, lease, licence, instrument or undertaking relating to—
(a)a Westpac excluded asset; or
(b)a Bank of Melbourne excluded asset; or
(c)the employment of a Challenge employee; or
(d)a provident, benefit, superannuation or retirement fund relating to Challenge employees.
(3)A director, secretary or auditor of Challenge is not by reason only of this Part a director, secretary or auditor (as the case may be) of Bank of Melbourne.
17Transitional provisions
(1)Without limiting sections 15 and 16, the following provisions have effect in relation to the transferring undertaking—
(a)the relationship between Challenge and a customer or depositor of that bank is, on and after the Bank of Melbourne vesting time, between Bank of Melbourne and that customer or depositor, and gives rise to the same rights and the same duties (including rights of set-off) as would have existed at the commencement time if that relationship had been between Bank of Melbourne and the customer or depositor, and so that any instruction, order, direction, mandate or authority given by that customer or depositor to Challenge and subsisting on or given after the Bank of Melbourne vesting time is, unless and until revoked or cancelled, deemed to have been given to Bank of Melbourne;
(b)any security held by Challenge as security for the payment of the debts or liabilities (whether present or future, certain or contingent) of any person and transferred to Westpac by Part 2 is by virtue of this Part transferred to Bank of Melbourne at the Bank of Melbourne vesting time, and is to be held by and be available to Bank of Melbourne as security for the payment of those debts and liabilities to Bank of Melbourne (but not, by reason only of this Part, as security for any debt or liability of that person to Bank of Melbourne existing immediately before that time) and, where the security extends to future advances to, or to future liabilities of, that person, the security shall, after that time, subject to any agreement between Bank of Melbourne and that person, be held by and be available to Bank of Melbourne as security for future advances to that person by, and future liabilities of that person to, Bank of Melbourne, to the same extent to which future advances by, or liabilities to, Challenge were secured immediately before the commencement time;
(c)Bank of Melbourne is, in relation to any security transferred under this Part and the money secured by the security, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been entitled and subject to, if the security had continued to be held by Challenge;
(d)the custody of any document, goods or thing held by Challenge as bailee for any other person at any office or branch or agency of Challenge transferred to Westpac by Part 2 is by virtue of this Part transferred to Bank of Melbourne at the Bank of Melbourne vesting time, and the rights, duties and liabilities of Challenge under any contract of bailment relating to the document, goods or thing transferred at that time to Westpac are transferred to Bank of Melbourne;
(e)any negotiable instrument or order for the payment of money, whether drawn, given, accepted or endorsed before, at or after the commencement time, which is expressed to be drawn by, drawn on, or given to, or accepted or endorsed by Challenge, or payable at any place of business of Challenge, has the same effect on and after the Bank of Melbourne vesting time as if it had been drawn by, drawn on, or given to, or accepted or endorsed by, Bank of Melbourne, or payable at the same place of business of Bank of Melbourne;
(f)any information held immediately before the commencement time by Challenge relating to a customer or depositor of that bank is available to and may be used by Bank of Melbourne on and after the Bank of Melbourne vesting time.
(2)Despite subsection (1) and sections 15 and 16—
(a)Bank of Melbourne is, in relation to any security held by it over any part of the transferring undertaking that consists of money on deposit with Challenge immediately before the commencement time, entitled to the same rights and priorities and subject to the same liabilities as it would have been had the money on deposit continued to be held by Challenge; and
(b)Bank of Melbourne is, in relation to any security held by Challenge immediately before the commencement time over any part of the transferring undertaking that consists of money on deposit with Bank of Melbourne, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been had the security continued to be held by Challenge.
18Transfer of Challenge Victorian staff to Bank of Melbourne
(1)A person who was an employee of Challenge in Victoria immediately before the commencement time is to be regarded as—
(a)having been appointed by Bank of Melbourne with effect from that time; and
(b)having an accrued entitlement to long service leave, sick leave, recreation leave or other like benefits, in connection with that appointment by the Bank of Melbourne, that is equivalent to the accrued entitlement to those benefits that the person had, immediately before that time, in respect of the person's employment by Challenge.
(2)The service of a transferred employee as an employee of Bank of Melbourne is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the commencement time, as an employee of Challenge.
(3)A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of Challenge because of this Part.
(4)Subsection (1) does not apply to an employee of Challenge who, in writing given to Challenge or Bank of Melbourne before the Bank of Melbourne vesting time, elects not to become an employee of Bank of Melbourne.
19Business name
(1)In addition to any other names under which it is entitled to carry on business in Victoria, during the transition period, Bank of Melbourne may carry on business in Victoria under the business name "Challenge Bank Limited" as if that name was registered under the Business Names Act 1962 as a business name of Bank of Melbourne.
(2)Subsection (1) does not have effect as an exemption from section 46.
(3)In subsection (1), transition period means the period of 6 months beginning at the Bank of Melbourne vesting time.
20Legal proceedings
(1)This section applies to—
(a)any action, arbitration or proceeding or cause of action, arbitration or proceeding which is at the Bank of Melbourne vesting time pending or existing by, against, or in favour of, Challenge in relation to any part of the transferring undertaking; and
(b)any cause of action, arbitration or proceeding by, against, or in favour of, Challenge in relation to any part of the transferring undertaking, which arises after the Bank of Melbourne vesting time in respect of a contract made by Challenge before the commencement time or which arises in respect of anything done or omitted to be done by Challenge before the commencement time—
but does not apply to any action, arbitration or proceeding or to any cause of action relating to—
(c)a Westpac excluded asset; or
(d)a Bank of Melbourne excluded asset; or
(e)a provident, benefit, superannuation or retirement fund relating to Challenge employees.
(2)Any action, arbitration or proceeding and any cause of action, arbitration or proceeding to which this section applies, is not abated or discontinued or in any way prejudicially affected by reason of this Part, and may, without any further act, deed or instrument other than any appropriate amendment of the records of the relevant court or tribunal, be prosecuted and continued and enforced by or against Bank of Melbourne, in its own name as and when it might have been prosecuted, continued and enforced by or against Challenge if this Act had not been enacted.
(3)Despite subsection (2), the court, tribunal or other person making or entering any judgment, order or award for the payment of any sum of money, whether ascertained or to be ascertained, against Bank of Melbourne in any legal or arbitral proceeding to which this section applies may, at the request of any party in whose favour the judgment, order or award is being made or entered, make or enter the judgment, order or award against both Challenge and Bank of Melbourne, and the judgment, order or award may, when so made or entered, be enforced against both Challenge and Bank of Melbourne.
21Amendment of Court documents where Bank of Melbourne erroneously made a party
(1)Any party to any action, arbitration or proceeding relating to a Bank of Melbourne excluded asset is entitled at any stage to seek leave to amend any writ, pleading or other document filed by the party in the action, arbitration or proceeding by substituting for the name of Bank of Melbourne the name of Challenge as party.
(2)No order is to be made against any party so amending to pay to Bank of Melbourne or to Challenge any costs occasioned by that amendment.
(3)The action, arbitration or proceeding is to be continued as if Challenge had originally been made a party to it.
22Evidence
(1)Any book or document which if this Part had not been enacted would have been evidence in respect of any matter for or against Challenge in relation to the transferring undertaking is, subject to this Act, after the commencement time, to be admissible in evidence in respect of the same matter for or against Bank of Melbourne.
(2)Without limiting subsection (1), the books of account of Challenge in relation to the transferring undertaking are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by the Bank of Melbourne.
* * * * *
23Construction of references
Subject to this Act, if any written law (other than this Act) or any document, whenever made or executed or any register established or kept under any Act contains any reference express or implied to Challenge in relation to the transferring undertaking, the reference is, after the Bank of Melbourne vesting time to be read and construed as a reference to Bank of Melbourne, unless the context otherwise requires.
24Repeal of provisions consequential on operation of this Part
Section 2(5), Division 2 of Part 2 and Part 4 are repealed.
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PART 5—GENERAL
35Payment of amount in lieu of State taxes and charges
(1)Westpac must pay to the Treasurer in lieu of all taxes, duties and charges for which it would otherwise be liable under the law of the State as a result of, or in connection with, the transfer of the undertaking of Challenge so far as it is located in Victoria, to Westpac, a sum which is, in the opinion of the Treasurer, equal to the amount of those taxes, duties and charges.
(2)Bank of Melbourne must pay to the Treasurer in lieu of all taxes, duties and charges for which it would otherwise be liable under the law of the State as a result of, or in connection with, the transfer of the transferring undertaking to Bank of Melbourne a sum which is, in the opinion of the Treasurer, equal to the amount of those taxes, duties and charges.
(3)The amount payable under subsection (1) or (2) is to be determined by the Treasurer in accordance with such principles as the Treasurer thinks appropriate.
(4)The Treasurer is to give a certificate to Westpac when satisfied that the sum due under subsection (1) has been paid stating that the sum due under that subsection has been paid.
(5)The Treasurer is to give a certificate to Bank of Melbourne when satisfied that the sum due under subsection (2) has been paid stating that the sum due under that subsection has been paid.
36Consumer Credit (Victoria) Act 1995
(1)The Consumer Credit (Victoria) Act 1995 does not have effect during any transition period applying in respect of—
(a)the undertaking of Challenge;
(b)the transferring undertaking within the meaning of Part 3;
(c)the transferring undertaking within the meaning of Part 4;
(d)the business of Challenge—
and the Credit Act 1984 (as in force before the commencement of Part 2 of the Consumer Credit (Victoria) Act 1995) applies in respect of that undertaking or business during that transition period.
(2)If a transition period applies in respect of an undertaking or business referred to in subsection (1), sections 19A(1) and 19B of the Credit Act 1984 apply in respect of the undertaking or business as if a reference in those sections to "the commencement day" were a reference to the day after the day on which the transition period ends.
(3)The Minister administering the Credit Act 1984, by notice published in the Government Gazette, may extend, or further extend, a transition period referred to in subsection (1) but not so that it exceeds a total period of 6 months.
(4)In this section, transition period means—
(a)in relation to the undertaking of Challenge, the period beginning at the commencement time;
(b)in relation to the transferring undertaking within the meaning of Part 3, the period beginning at the commencement time;
(c)in relation to the transferring undertaking within the meaning of Part 4, the period beginning on the day on which Part 4 comes into operation;
(d)in relation to the business of Challenge, the period beginning on the day on which this section comes into operation or the date of commencement of Part 2 of the Consumer Credit (Victoria) Act 1995, whichever is the later—
and ending on such date, being not later than 6 months, after the beginning of the period, as is declared in relation to the particular period, by the Minister administering the Credit Act 1984 by notice published in the Government Gazette, to be the end of that period.
37Effect of things done under this Act
(1)Nothing effected by this Act or done or suffered by Challenge, Westpac or Bank of Melbourne under this Act or done to give effect to this Act—
(a)is to be regarded as placing any of them in breach of contract or confidence or as otherwise making either of them guilty of a civil wrong; or
(b)is to be regarded as placing any of them in breach of or as constituting a default under any written law or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(c)is to be regarded as fulfilling any condition which allows a person to terminate any agreement or liability; or
(d)releases any surety or other obligee wholly or in part from any liability.
(2)Without limiting subsection (1) where, but for this subsection, the advice or consent of any person would be necessary to carry out any action authorised by this Act, that advice or consent is taken to have been given.
38Service of documents
(1)Service of a document after the commencement time—
(a)on Westpac is deemed to be service on Challenge in addition to service on Westpac; and
(b)on Challenge is deemed to be service on Westpac in addition to service on Challenge.
(2)Subsection (1) ceases to apply upon Challenge ceasing to be a related body corporate of Westpac within the meaning of section 9 of the Corporations Law.[3]
39Excluded assets
(1)No person dealing with Westpac or Challenge (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, in respect of any dealing or transaction entered into or purporting to be entered into by Westpac or Challenge, is to be concerned to see, or enquire into, whether any property the subject of the dealing or transaction (whether or not that property is land) is a Westpac excluded asset, nor is such person to be affected by any notice, express, implied or constructive, that any such property is a Westpac excluded asset.
(2)If any dealing or transaction is entered into by Westpac with any person, in relation to or in connection with a Westpac excluded asset, it is to be deemed in favour of that person that Westpac has full power and authority to enter into that dealing or transaction as if that asset had vested in Westpac under Part 2.
(3)Nothing in subsection (1) affects the liability of Westpac to Challenge in respect of anything done, or purporting to be done, by Westpac in relation to or in connection with a Westpac excluded asset.
(4)No person dealing with Bank of Melbourne (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, in respect of any dealing or transaction entered into or purporting to be entered into by Bank of Melbourne is to be concerned to see, or enquire into, whether any property the subject of the dealing or transaction (whether or not that property is land) is a Bank of Melbourne excluded asset, nor is such person to be affected by any notice, express, implied or constructive, that any such property is a Bank of Melbourne excluded asset.
(5)If any dealing or transaction is entered into by Bank of Melbourne with any person, in relation to or in connection with a Bank of Melbourne excluded asset, it is to be deemed in favour of that person that Bank of Melbourne has full power and authority to enter into that dealing or transaction as if that asset had vested in Bank of Melbourne under this Act.
(6)Nothing in this section affects the liability of Bank of Melbourne to Westpac in respect of anything done, or purporting to be done, by Bank of Melbourne in relation to or in connection with a Bank of Melbourne excluded asset.
40Certificates may be issued
(1)The Chief Executive Officer of Westpac may, by signed certificate, certify any matter in relation to the operation of Part 2.
(2)The Chief Executive Officer of Bank of Melbourne may, by signed certificate, certify any matter in relation to the operation of Part 3 or 4.
41Interests in land in the Register Book
(1)Where any land of which Challenge is, or is deemed or taken to be, the registered proprietor is by virtue of Part 2 vested in Westpac, notwithstanding anything to the contrary in any written law or other law, Westpac is to be deemed to be the registered proprietor of the land for the purposes of the Transfer of Land Act 1958 and the land may be dealt with accordingly.
(2)Where any land of which Challenge or Westpac is, or is deemed or taken to be, the registered proprietor is by virtue of Part 3 or 4 vested in Bank of Melbourne, notwithstanding anything to the contrary in any written law or other law, Bank of Melbourne is to be deemed to be the registered proprietor of the land for the purposes of the Transfer of Land Act 1958 and the land may be dealt with accordingly.
42Action by Registrar of Titles or Registrar-General
(1)On being requested to do so and on delivery of any relevant instrument or document and on payment of any relevant fees under the Transfer of Land Act 1958, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of this Act.
(2)On being requested to do so and on production of any relevant instrument or document, the Registrar-General must make all entries on records of enrolment of any Crown grant and on any memorial relating to any land concerned that are necessary because of the operation of this Act.
43Certificates in relation to charges
Section 268(1) of the Corporations Law is to be taken to have been complied with in respect of all charges of which Westpac or Bank of Melbourne becomes the holder by virtue of this Act if there is lodged with the Australian Securities Commission a certificate signed by the Chief Executive Officer of Westpac or Bank of Melbourne, as the case requires, stating that by virtue of this Act the undertaking of Challenge has become vested in Westpac or the transferring undertaking has become vested in Bank of Melbourne, as the case requires.
44Other property
(1)If—
(a)any property (other than property to which section 41, 42 or 43 applies) becomes, under Part 2, the property of Westpac; and
(b)any person or authority has, under any written law, responsibility for keeping a register in respect of property of that kind—
then—
(c)any requirement of that written law relating to the transfer of such property from one person to another is to be taken to have been complied with if there is lodged with that person or authority a certificate signed by the Chief Executive Officer of Westpac stating that by virtue of Part 2 the undertaking of Challenge has become vested in Westpac; and
(d)that person or authority, on being requested to do so and on delivery of any relevant instrument, is to make any amendments to that register which are necessary to make it accurately reflect the effect of Part 2.
(2)If—
(a)any property (other than property to which section 41, 42 or 43 applies) becomes, under this Act, the property of Bank of Melbourne; and
(b)any person or authority has, under any written law, responsibility for keeping a register in respect of property of that kind—
then—
(c)any requirement of that written law relating to the transfer of such property from one person to another is to be taken to have been complied with if there is lodged with that person or authority a certificate signed by the Chief Executive Officer of Bank of Melbourne stating that by virtue of Part 3 or 4 the transferring undertaking has become vested in Bank of Melbourne; and
(d)that person or authority, on being requested to do so and on delivery of any relevant instrument, is to make any amendments to that register which are necessary to make it accurately reflect the effect of Part 3 or 4.
45Certificates conclusive
(1)For all purposes and in all courts, tribunals and proceedings, a certificate under this Act is conclusive evidence of the matters certified, except so far as the contrary is established.
(2)A document purporting to be a certificate under this Act is, unless the contrary is established, taken to be such a certificate and to have been properly given.
46Application of banking laws
Except to the extent that an exemption is directly contemplated by, or is a necessary consequence of, this Act, nothing in this Act exempts Westpac or Bank of Melbourne from the provisions of any written law relating to companies carrying on the business of banking.
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ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 18 June 1996
Legislative Council: 19 June 1996
The long title for the Bill for this Act was "A Bill to provide for the transfer to Westpac Banking Corporation of the banking business of Challenge Bank Limited and the transfer to Bank of Melbourne Limited of part of that business and for other purposes."
The Westpac and Bank of Melbourne (Challenge Bank) Act 1996 was assented to on 2 July 1996 and came into operation as follows:
Part 1 (sections 1–5), section 35 on 2 July 1996: section 2(1); section 36 on 1 November 1996: Government Gazette 31 October 1996 page 2811; Part 2 Division 1 (sections 6–12), Part 3 (sections 15–24), sections 37–46 on 8 December 1996: Government Gazette 5 December 1996 page 3105; Part 2 Division 2 (sections 13, 14), Part 4 (sections 25–34) and Schedule 1 repealed unproclaimed by section 24 of this Act.
2. Table of Amendments
This Version incorporates amendments made to the Westpac and Bank of Melbourne (Challenge Bank) Act 1996 by Acts and subordinate instruments.
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Westpac and Bank of Melbourne (Challenge Bank) Act 1996, No. 26/1996
Assent Date: 2.7.96 Commencement Date: S. 24 on 8.12.96: Government Gazette 5.12.96 p. 3105 CurrentState: This information relates only to the provision/s amending the Westpac and Bank of Melbourne (Challenge Bank) Act 1996
Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009
Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 64) on 1.1.10: s. 2(2) CurrentState: This information relates only to the provision/s amending the Westpac and Bank of Melbourne (Challenge Bank) Act 1996
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3. Explanatory Details
No entries at date of publication.
[1] Preamble: See regulation 4 of the Corporations (Ancillary Provisions) Regulations 2001, S.R. No. 63/2001.
[2] S. 3: See endnote 1.
[3] S. 38(2): See endnote 1.
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