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This is a Bill, not an Act. For current law, see the Acts databases.


COOPERATIVES BILL 1997

        Queensland




COOPERATIVES BILL 1997

 


 

 

Queensland COOPERATIVES BILL 1997 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY Division 1--Introductory 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 4 Objects of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 5 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Division 2--Qualified privilege provisions 6 Qualified privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Division 3--The cooperative principles 7 Cooperative principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8 Interpretation to promote cooperative principles . . . . . . . . . . . . . . . . . . . . . . 31 Division 4--Application of Corporations Law 9 Corporations Law applying under its own force . . . . . . . . . . . . . . . . . . . . . . 31 10 Corporations Law adopted by this Act or the regulations . . . . . . . . . . . . . . . 32 11 Interpretation of adopted provisions of Corporations Law . . . . . . . . . . . . . . 33 12 Implied adoption of regulations and other provisions of Corporations Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 PART 2--FORMATION Division 1--Types of cooperatives 13 Types of cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 14 Trading cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 15 Non-trading cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

 


 

2 Cooperatives Division 2--Formation meeting 16 Formation meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Division 3--Approval of disclosure statement and rules 17 Approval of disclosure statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 18 Approval of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Division 4--Registration of proposed cooperative 19 Application for registration of proposed cooperative . . . . . . . . . . . . . . . . . . 39 20 Registration of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 21 Incorporation and certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Division 5--Registration of an existing corporation 22 Existing corporation can be registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 23 Formation meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 24 Application for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 25 Requirements for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 26 Certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 27 Effect of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Division 6--Conversion of cooperative 28 Conversion of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Division 7--Appeals 29 Appeal against refusal to approve disclosure statement . . . . . . . . . . . . . . . . 45 30 Appeal against refusal to approve draft rules . . . . . . . . . . . . . . . . . . . . . . . . 45 31 Appeal against refusal to register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 32 Supreme Court's powers on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Division 8--General 33 Acceptance of money by proposed cooperative . . . . . . . . . . . . . . . . . . . . . . 45 34 Issue of duplicate certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 PART 3--LEGAL CAPACITY AND POWERS Division 1--General powers 35 Effect of incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 36 Power to form companies and enter into joint ventures . . . . . . . . . . . . . . . . 46 Division 2--Doctrine of ultra vires abolished 37 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

 


 

3 Cooperatives 38 Doctrine of ultra vires abolished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 39 Legal capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 40 Restrictions on cooperatives in rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 41 Results of contravention of restriction in rules . . . . . . . . . . . . . . . . . . . . . . . 49 Division 3--Persons having dealings with cooperatives 42 Assumptions entitled to be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 43 Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 44 Person who knows or ought to know can not make assumptions . . . . . . . . . 51 45 Filing of documents not to constitute constructive knowledge . . . . . . . . . . 51 46 Effect of fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Division 4--Authentication and execution of documents and confirmation of contracts 47 Common seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 48 Official seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 49 Authentication need not be under seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 50 Cooperative may authorise person to execute deed . . . . . . . . . . . . . . . . . . . 53 51 Execution under seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 52 Contractual formalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 53 Other requirements as to consent or sanction not affected . . . . . . . . . . . . . . 54 54 Transitional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Division 5--Pre-registration contracts 55 Contracts before registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 56 Person may be released from liability but is not entitled to indemnity . . . 55 57 This division replaces other rights and liabilities . . . . . . . . . . . . . . . . . . . . . 56 PART 4--MEMBERSHIP Division 1--General 58 Becoming a member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 59 Members of associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 60 Members of federations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 61 Qualification for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 62 Membership may be joint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 63 Members under 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 64 Representatives of corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

 


 

4 Cooperatives 65 Notification of shareholders and shareholdings . . . . . . . . . . . . . . . . . . . . . . . 59 66 Circumstances in which membership ceases--all cooperatives . . . . . . . . . 59 67 Additional circumstances in which membership ceases--cooperatives with share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 68 Carrying on business with too few members . . . . . . . . . . . . . . . . . . . . . . . . . 60 Division 2--Rights and liabilities of members 69 Rights of membership not exercisable until registered etc. . . . . . . . . . . . . . 61 70 Liability of members to cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 71 Cooperative to give information to person intending to become a member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 72 Entry fees and regular subscriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 73 Members etc. may be required to deal with cooperative . . . . . . . . . . . . . . . 63 74 Fines payable by members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 75 Charge and set-off of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 76 Repayment of shares on expulsion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Division 3--Death of member 77 Meaning of "interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 78 Transfer of share or interest on death of member . . . . . . . . . . . . . . . . . . . . . 66 79 Transfer of small shareholdings and interests on death . . . . . . . . . . . . . . . . 66 80 Value of shares and interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 81 Cooperative protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Division 4--Disputes involving members 82 Grievance procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 83 Application to Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Division 5--Oppressive conduct of affairs 84 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 85 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 86 Who may apply for court order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 87 Orders the Supreme Court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 88 Basis on which Supreme Court makes orders . . . . . . . . . . . . . . . . . . . . . . . . 70 89 Winding-up need not be ordered if oppressed members prejudiced . . . . . . 70 90 Application of winding-up provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 91 Changes to rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

 


 

5 Cooperatives 92 Copy of order to be filed with registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Division 6--Proceedings on behalf of a cooperative by members and others 93 Bringing, or intervening in, proceedings on behalf of a cooperative . . . . . . 71 94 Applying for and granting leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 95 Substitution of another person for the person granted leave . . . . . . . . . . . . . 72 96 Effect of ratification by members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 97 Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 98 General powers of the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 99 Power of Supreme Court to make costs order . . . . . . . . . . . . . . . . . . . . . . . . 74 PART 5--RULES 100 Effect of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 101 Content of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 102 Purchase and inspection of copy of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 103 False copies of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 104 Model rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 105 Rules can only be altered under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 106 Approval of alteration of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 107 Alteration by special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 108 Alteration by resolution of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 109 Alteration does not take effect until registered . . . . . . . . . . . . . . . . . . . . . . . 78 110 Appeal against refusal to approve alteration . . . . . . . . . . . . . . . . . . . . . . . . . 79 111 Appeal against refusal to register alteration . . . . . . . . . . . . . . . . . . . . . . . . . 79 112 Supreme Court's powers on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 PART 6--ACTIVE MEMBERSHIP Division 1--Definitions 113 Meaning of "primary activity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 114 What is active membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 115 What are active membership provisions and resolutions . . . . . . . . . . . . . . . 80 Division 2--Rules to contain active membership provisions 116 Number of primary activities required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 117 Rules to contain active membership provisions . . . . . . . . . . . . . . . . . . . . . . 80

 


 

6 Cooperatives 118 Factors and considerations for deciding primary activities etc. . . . . . . . . . . 81 119 Active membership provisions--trading cooperatives . . . . . . . . . . . . . . . . . 81 120 Regular subscription--active membership of non-trading cooperative . . . . 82 Division 3--Active membership resolutions 121 Notice of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 122 Eligibility to vote on active membership resolution . . . . . . . . . . . . . . . . . . . 83 123 Eligibility of directors to vote on proposal at board meeting . . . . . . . . . . . . 83 124 Other entitlements of members not affected . . . . . . . . . . . . . . . . . . . . . . . . . 83 Division 4--Cancellation of membership of inactive members 125 Cancellation of membership of inactive member . . . . . . . . . . . . . . . . . . . . . 83 126 Share to be forfeited if membership cancelled . . . . . . . . . . . . . . . . . . . . . . . 84 127 Failure to cancel membership--offence by director . . . . . . . . . . . . . . . . . . . 85 128 Deferral of forfeiture by board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 129 Cancellation of membership prohibited in certain circumstances . . . . . . . . 85 130 Notice of intention to cancel membership . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 131 Order of Supreme Court against cancellation . . . . . . . . . . . . . . . . . . . . . . . . 86 132 Repayment of amounts owing because of cancelled membership . . . . . . . 87 133 Interest on deposits and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 134 Repayment of deposits and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 135 Register of cancelled memberships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Division 5--Entitlements of former members of trading cooperatives 136 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 137 Former shareholders to be taken to be shareholders for certain purposes . . 89 138 Entitlements of former shareholders on mergers etc. . . . . . . . . . . . . . . . . . . 90 139 Set-off of amounts repaid etc. on forfeited shares . . . . . . . . . . . . . . . . . . . . . 91 140 Entitlement to distribution from reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 141 Regulation may exempt cooperatives from provisions . . . . . . . . . . . . . . . . . 93 PART 7--SHARES Division 1--Nature of share 142 Nature of share in cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Division 2--Disclosure 143 Disclosure to members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

 


 

7 Cooperatives Division 3--Issue of shares 144 Shares--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 145 Minimum paid up amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 146 Shares not to be issued at a discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 147 Issue of shares at a premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 148 Joint ownership of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 149 Members may be required to take up additional shares . . . . . . . . . . . . . . . . 96 150 Bonus share issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 151 Restrictions on bonus shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 152 Notice about bonus shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Division 4--Beneficial and non-beneficial interest in shares 153 Notice of non-beneficial ownership at time of transfer . . . . . . . . . . . . . . . . . 99 154 Notice of non-beneficial ownership not notified at time of transfer . . . . . . 99 155 Registration as beneficial owner of shares notified as non-beneficially transferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 156 Notification of change in nature of shareholding . . . . . . . . . . . . . . . . . . . . 101 157 Presumption of awareness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 158 Presumption that shares held non-beneficially . . . . . . . . . . . . . . . . . . . . . . 101 159 Noting of beneficial and non-beneficial interests in register of members . 102 160 Registration as trustee etc. on death of owner of shares . . . . . . . . . . . . . . . 102 161 Registration as administrator of estate on incapacity of shareholder . . . . 103 162 Registration as Official Trustee in Bankruptcy . . . . . . . . . . . . . . . . . . . . . . 103 163 Liabilities of person registered as trustee or administrator . . . . . . . . . . . . . 103 164 Notice of trusts in register of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 165 No notice of trust except as provided by this division . . . . . . . . . . . . . . . . 104 Division 5--Sale or transfer of shares 166 Sale or transfer of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 167 Transfer on death of member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 168 Restriction on total shareholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 169 Transfer not effective until registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Division 6--Repurchase of shares 170 Purchase and repayment of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 171 Deposit or debentures instead of payment when share repurchased . . . . . 106

 


 

8 Cooperatives 172 Cancellation of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 PART 8--VOTING Division 1--Voting entitlements 173 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 174 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 175 Voting by proxy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 176 Restriction on voting entitlement under power of attorney . . . . . . . . . . . . 109 177 Restriction on voting by representatives of corporations . . . . . . . . . . . . . . 109 178 Inactive members not entitled to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 179 Control of the right to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 180 Effect of relevant share and voting interests on voting rights . . . . . . . . . . 110 181 Rights of representatives to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 182 Other rights and duties of members not affected by ineligibility to vote . 111 183 Vote of disentitled member to be disregarded . . . . . . . . . . . . . . . . . . . . . . . 111 Division 2--Resolutions 184 Decisions to be by ordinary resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 185 Ordinary resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 186 Special resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 187 How majority obtained is ascertained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 188 Disallowance by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 189 Declaration of passing of special resolution . . . . . . . . . . . . . . . . . . . . . . . . 112 190 Effect of special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 191 Registration of special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 192 Decision of registrar on application to register special resolution . . . . . . . 113 Division 3--Postal ballots 193 Postal ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 194 Special postal ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 195 When is a special postal ballot required . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 196 Holding of postal ballot on requisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 197 Expenses involved in postal ballots on requisition . . . . . . . . . . . . . . . . . . . 117 Division 4--Meetings 198 Annual general meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

 


 

9 Cooperatives 199 Special general meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 200 Notice of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 201 Quorum at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 202 Decision at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 203 Calling of general meeting on requisition . . . . . . . . . . . . . . . . . . . . . . . . . . 119 204 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 PART 9--MANAGEMENT AND ADMINISTRATION OF COOPERATIVES Division 1--The board 205 Board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 206 Election of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 207 Qualification of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 208 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 209 Meeting of the board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 210 Transaction of business outside meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 124 211 Deputy directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 212 Delegation by board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 213 Removal from and vacation of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Division 2--Duties and liabilities of directors, officers and employees 214 Meaning of "officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 215 Officers must act honestly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 216 Standard of care and diligence required . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 217 Improper use of information or position . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 218 Recovery of damages by cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 219 Other duties and liabilities not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 220 Indemnification of officers and auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 221 Adoption of Corporations Law provisions about officers of cooperatives . 130 Division 3--Restrictions on directors and officers 222 Directors' remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 223 Certain financial accommodation to officers prohibited . . . . . . . . . . . . . . 130 224 Financial accommodation to directors and associates . . . . . . . . . . . . . . . . 131

 


 

10 Cooperatives 225 Restriction on directors of certain cooperatives selling land to cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 226 Management contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Division 4--Declaration of interests 227 Declaration of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 228 Declarations to be recorded in minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 229 Division does not affect other laws or rules . . . . . . . . . . . . . . . . . . . . . . . . . 136 230 Certain interests need not be declared . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Division 5--Accounts and audit 231 Meaning of "entity" and "control" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 232 Requirements for accounts and accounting records . . . . . . . . . . . . . . . . . . 137 233 Power of registrar to grant exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 234 Disclosure by directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 235 Protection of auditors etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 236 Financial year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Division 6--Registers, records and returns 237 Registers to be kept by cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 238 Location of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 239 Inspection of registers etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 240 Use of information on registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 241 Notice of appointment etc. of directors and officers . . . . . . . . . . . . . . . . . . 142 242 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 243 List of members to be provided at request of registrar . . . . . . . . . . . . . . . . 143 244 Special return to be given at request of registrar . . . . . . . . . . . . . . . . . . . . 144 Division 7--Name and registered office 245 Name to include certain matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 246 Use of abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 247 Name to appear on business documents etc. . . . . . . . . . . . . . . . . . . . . . . . . 145 248 Change of name of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 249 Registered office of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 PART 10--FUNDS AND PROPERTY Division 1--Power to raise money 250 Meaning of obtaining financial accommodation . . . . . . . . . . . . . . . . . . . . . 147

 


 

11 Cooperatives 251 Fund raising to be in accordance with Act and regulations . . . . . . . . . . . . 148 252 Limits on deposit taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 253 Members etc. not required to see to application of money . . . . . . . . . . . . 148 254 Registrar's directions about fundraising . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 255 Subordinated debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 256 Application of Corporations Law to issues of debentures . . . . . . . . . . . . . . 149 257 Disclosure statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 258 Approval of board for transfer of debentures . . . . . . . . . . . . . . . . . . . . . . . . 151 259 Application of Corporations Law--reissue of redeemed debentures . . . . . 151 260 Compulsory loan by member to cooperative . . . . . . . . . . . . . . . . . . . . . . . . 151 261 Interest payable on compulsory loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Division 2--Charges 262 Registration of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Division 3--Receivers and other controllers of property of cooperatives 263 Receivers and other controllers of property of cooperatives . . . . . . . . . . . 154 Division 4--Disposal of surplus from activities 264 Retention of surplus for benefit of cooperative . . . . . . . . . . . . . . . . . . . . . . 154 265 Application for charitable purposes or members' purposes . . . . . . . . . . . . 154 266 Distribution of surplus or reserves to members . . . . . . . . . . . . . . . . . . . . . . 154 267 Application of surplus to other persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Division 5--Acquisition and disposal of assets 268 Acquisition and disposal of assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 PART 11--RESTRICTIONS ON THE ACQUISITION OF INTERESTS IN COOPERATIVES Division 1--Restrictions on share and voting interests 269 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 270 Notice required to be given of voting interest . . . . . . . . . . . . . . . . . . . . . . . 157 271 Notice required to be given of substantial share interest . . . . . . . . . . . . . . 157 272 Requirements for notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 273 Maximum permissible level of share interest . . . . . . . . . . . . . . . . . . . . . . . 158 274 Shares to be forfeited to remedy contravention . . . . . . . . . . . . . . . . . . . . . . 159 275 Powers of board in response to suspected contravention . . . . . . . . . . . . . . 159

 


 

12 Cooperatives 276 Powers of Supreme Court about contravention . . . . . . . . . . . . . . . . . . . . . . 160 277 Cooperative to inform registrar of interest over 20% . . . . . . . . . . . . . . . . . 161 278 Cooperative to keep register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 279 Unlisted companies to provide list of shareholders etc. . . . . . . . . . . . . . . . 161 280 Excess share interest not to affect loan liability . . . . . . . . . . . . . . . . . . . . . 162 281 Extent of operation of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 282 Registrar may grant exemption from division . . . . . . . . . . . . . . . . . . . . . . . 163 Division 2--Restrictions on certain share offers 283 Share offers to which division applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 284 Requirements to be satisfied before offer can be made . . . . . . . . . . . . . . . 164 285 Some offers totally prohibited if they discriminate . . . . . . . . . . . . . . . . . . . 164 286 Offers to be submitted to board first . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 287 Announcements of proposed takeovers about proposed company . . . . . . . 165 288 Additional disclosure requirements for offers involving conversion to company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 289 Consequences of prohibited offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 290 Registrar may grant exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 PART 12--MERGER, TRANSFER OF ENGAGEMENTS, WINDING-UP Division 1--Mergers and transfers of engagements 291 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 292 Mergers and transfers of engagements of local cooperatives . . . . . . . . . . . 167 293 Requirements before application can be made . . . . . . . . . . . . . . . . . . . . . . 167 294 Disclosure statement required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 295 Making an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 296 Approval of merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 297 Approval of transfer of engagements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 298 Transfer of engagements by direction of registrar . . . . . . . . . . . . . . . . . . . . 170 Division 2--Transfer of incorporation 299 Meaning of "new body" and "transfer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 300 Application for transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 301 Requirements before application can be made . . . . . . . . . . . . . . . . . . . . . . 172 302 New body ceases to be registered as cooperative . . . . . . . . . . . . . . . . . . . . 173

 


 

13 Cooperatives 303 Transfer not to impose greater liability etc. . . . . . . . . . . . . . . . . . . . . . . . . . 173 304 Effect of new certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 305 New body is a continuation of the cooperative . . . . . . . . . . . . . . . . . . . . . . 173 Division 3--Winding-up 306 Methods of winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 307 Winding-up on registrar's certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 308 Application of Corporations Law to winding-up . . . . . . . . . . . . . . . . . . . . . 175 309 Restrictions on voluntary winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 310 Start of members' voluntary winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 311 Distribution of surplus-non-trading cooperatives . . . . . . . . . . . . . . . . . . . . . 176 312 Liquidator--vacancy may be filled by registrar . . . . . . . . . . . . . . . . . . . . . 177 313 Review of liquidator's remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 314 Liability of member to contribute in a winding-up if shares forfeited etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Division 4--Administration of cooperative--adoption of Corporations Law 315 Adoption of Corporations Law, pts 5.3A and 5.9 . . . . . . . . . . . . . . . . . . . . . 178 Division 5--Appointment of administrator 316 Appointment of administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 317 Effect of appointment of administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 318 Revocation of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 319 Expenses of administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 320 Liabilities arising from administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 321 Additional powers of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 322 Stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 323 Administrator to report to registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Division 6--Effect of merger etc. on property, liabilities etc. 324 How this division applies to a merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 325 How this division applies to a transfer of engagements . . . . . . . . . . . . . . . 183 326 How this division applies to a transfer of incorporation . . . . . . . . . . . . . . . 183 327 Effect of merger etc. on property, liabilities etc. . . . . . . . . . . . . . . . . . . . . . 184

 


 

14 Cooperatives Division 7--Miscellaneous 328 Grounds for winding-up, transfer of engagements, appointment of administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 329 Adoption of Corporations Law about reciprocity with other jurisdictions . 186 330 Adoption of Corporations Law about insolvent cooperatives . . . . . . . . . . . 187 PART 13--ARRANGEMENTS AND RECONSTRUCTIONS Division 1--General requirements 331 Requirements for binding compromise or arrangement . . . . . . . . . . . . . . . 187 332 Supreme Court ordered meeting of creditors . . . . . . . . . . . . . . . . . . . . . . . . 188 333 Registrar to be given notice and opportunity to make submissions . . . . . . 189 334 Results of 2 or more meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 335 Persons disqualified from administering compromise etc. . . . . . . . . . . . . . 190 336 Adoption of provisions of Corporations Law and application to person appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 337 Copy of order to be attached to rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 338 Directors to arrange for reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 339 Power of Supreme Court to restrain further proceedings . . . . . . . . . . . . . . 192 340 Supreme Court need not approve compromise or arrangement takeovers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Division 2--Explanatory statements 341 Explanatory statement required to accompany notice of meeting etc. . . . 193 342 Requirements for explanatory statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 343 Contravention of division--offence by cooperative . . . . . . . . . . . . . . . . . . 194 344 Provisions for facilitating reconstructions and mergers . . . . . . . . . . . . . . . 195 Division 3--Acquisition of shares of dissenting shareholders 345 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 346 Schemes and contracts to which division applies . . . . . . . . . . . . . . . . . . . . 197 347 Acquisition of shares pursuant to notice to dissenting shareholder . . . . . . 197 348 Restrictions when excluded shares are more than 10% . . . . . . . . . . . . . . . 198 349 Remaining shareholders may require acquisition . . . . . . . . . . . . . . . . . . . . 198 350 Transfer of shares pursuant to compulsory acquisition . . . . . . . . . . . . . . . . 199 351 Disposal of consideration for shares compulsorily acquired . . . . . . . . . . . . 200

 


 

15 Cooperatives Division 4--Miscellaneous 352 Notification of appointment of scheme manager . . . . . . . . . . . . . . . . . . . . 200 353 Power of Supreme Court to require reports . . . . . . . . . . . . . . . . . . . . . . . . . 201 354 Effect of out-of-jurisdiction compromise or arrangement . . . . . . . . . . . . . . 201 355 Jurisdiction to be exercised in harmony with Corporations Law jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 356 Registrar may appear etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 PART 14--FOREIGN COOPERATIVES Division 1--Introductory 357 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 358 Cooperatives law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Division 2--Registration of foreign cooperatives 359 Operation of foreign cooperatives in Queensland . . . . . . . . . . . . . . . . . . . . 203 360 Meaning of "carrying on business" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 361 Application for registration of participating cooperative . . . . . . . . . . . . . . 204 362 Application for registration of non-participating cooperative . . . . . . . . . . . 205 363 Registrar to approve rules of non-participating cooperative . . . . . . . . . . . . 205 364 Name of foreign cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 365 Registration of foreign cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 366 Application of Act to foreign cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . 206 367 Registrar to be notified of certain changes . . . . . . . . . . . . . . . . . . . . . . . . . 206 368 Balance sheets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 369 Cessation of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 370 Cooperative proposing to register as a foreign cooperative . . . . . . . . . . . . 208 Division 3--Mergers and transfers of engagements 371 Who is the appropriate registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 372 Authority for merger or transfer of engagements . . . . . . . . . . . . . . . . . . . . . 209 373 Requirements before application can be made . . . . . . . . . . . . . . . . . . . . . . 209 374 Disclosure statement required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 375 Making an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 376 Approval of merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 377 Approval of transfer of engagements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 378 Effect of merger or transfer of engagements . . . . . . . . . . . . . . . . . . . . . . . . 213

 


 

16 Cooperatives 379 Division applies instead of certain other provisions of this Act . . . . . . . . . 215 PART 15--SUPERVISION AND PROTECTION OF COOPERATIVES Division 1--Supervision and inspection 380 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 381 "Cooperative" includes subsidiaries, foreign cooperatives and cooperative ventures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 382 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 383 Registrar and investigators have functions of inspectors . . . . . . . . . . . . . . 216 384 Inspector's identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 385 Production or display of inspector's identity card . . . . . . . . . . . . . . . . . . . . 217 386 Powers of inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 387 Inspector's appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 388 Entry of place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 389 Consent to entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 390 Inspectors may require certain persons to appear, answer questions and produce documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 391 Powers of inspectors on place entered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 392 Functions of inspectors in relation to relevant documents . . . . . . . . . . . . . 221 393 Protection from incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 394 Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 395 Warrants--applications made other than in person . . . . . . . . . . . . . . . . . . 223 396 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 397 Power to seize evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 398 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 399 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 400 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 401 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 402 Power to require production of documents . . . . . . . . . . . . . . . . . . . . . . . . . . 228 403 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 404 Obstruction of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 405 Copies or extracts of records to be admitted in evidence . . . . . . . . . . . . . 229 406 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

 


 

17 Cooperatives 407 Police aid for inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Division 2--Inquiries 408 Definitions for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 409 Appointment of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 410 Powers of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 411 Examination of involved person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 412 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 413 Offences by involved person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 414 Offences relating to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 415 Record of examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 416 Report of investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 417 Proceedings following inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 418 Admission of investigator's report as evidence . . . . . . . . . . . . . . . . . . . . . . 237 419 Costs of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Division 3--Prevention of fraud etc. 420 Falsification of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 421 Fraud or misappropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 422 Offering or paying commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 423 Accepting commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 424 False statements in loan application etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 240 Division 4--Miscellaneous powers of the registrar 425 Application for special meeting or inquiry . . . . . . . . . . . . . . . . . . . . . . . . . 240 426 Holding of special meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 427 Expenses of special meeting or inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 428 Power to hold special inquiry into cooperative . . . . . . . . . . . . . . . . . . . . . . 242 429 Special meeting following inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 430 Information and evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 431 Extension or abridgment of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 432 Power of registrar to intervene in proceedings . . . . . . . . . . . . . . . . . . . . . . 243 PART 16--ADMINISTRATION OF THIS ACT Division 1--The registrar and other staff, and registers 433 Appointment of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

 


 

18 Cooperatives 434 Registrar's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 435 Deputy registrar and other staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 436 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 437 Register of cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 438 Keeping of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 439 Disposal of records by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 440 Inspection of register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 441 Approvals by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 442 Filing of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 443 Way of filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 444 Power of registrar to refuse to register or reject documents . . . . . . . . . . . . 247 Division 2--Protection from liability 445 Particular officials protected from liability . . . . . . . . . . . . . . . . . . . . . . . . . 247 Division 3--Evidence 446 Certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 447 Certificate evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 448 Records kept by cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 449 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 450 Official certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 451 The registrar and proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 452 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 453 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 PART 17--OFFENCES AND PROCEEDINGS 454 Offences by officers of cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 455 Notice to be given of conviction for offence . . . . . . . . . . . . . . . . . . . . . . . . 251 456 Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 457 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 458 Further offence for failure to do required act . . . . . . . . . . . . . . . . . . . . . . . . 254 459 Civil remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 460 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 461 Proceedings for offences etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

 


 

19 Cooperatives PART 18--GENERAL 462 Cooperative ceasing to exist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 463 Service of documents on cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 464 Service on member of cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 465 Reciprocal arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 466 Translations of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 467 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 468 Regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 PART 19--REPEALS, AMENDMENT, SAVINGS AND TRANSITIONAL 469 Repeal of Cooperative and Other Societies Act 1967 . . . . . . . . . . . . . . . . 260 470 Repeal of Primary Producers' Cooperative Associations Act 1923 . . . . . . 260 471 Savings and transitional provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 472 Amendment of other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 261 MATTERS FOR WHICH RULES MUST MAKE PROVISION 1 Requirements for all cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 2 Additional matters--cooperatives with share capital . . . . . . . . . . . . . . . . . 263 3 Additional matters--non-trading cooperatives . . . . . . . . . . . . . . . . . . . . . . 264 SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 265 RELEVANT INTERESTS, ASSOCIATES, RELATED BODIES PART 1--RELEVANT INTERESTS 1 Terminology used in this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 2 Basic rules--relevant interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 3 Control of corporation having power in relation to a share . . . . . . . . . . . . 266 4 Control of 20% of voting power in corporation having power in relation to a share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 5 Deemed relevant interest in advance of performance of agreement that will give rise to a relevant interest . . . . . . . . . . . . . . . . . . 267 6 Control of corporation having a relevant interest by virtue of s 5 . . . . . . . 267 7 Matters not affecting application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 8 Corporation may have a relevant interest in its own shares . . . . . . . . . . . . 268 9 Exclusions--money-lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

 


 

20 Cooperatives 10 Exclusions--certain trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 11 Exclusions--instructions to securities dealer to dispose of share . . . . . . . 269 12 Exclusions--honorary proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 13 Exclusions--holders of prescribed offices . . . . . . . . . . . . . . . . . . . . . . . . . . 269 14 Prescribed exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 15 Effect of schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 16 Relevant interest--corporation other than cooperative . . . . . . . . . . . . . . . 270 PART 2--ASSOCIATES 17 Effect of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 18 Associates of a corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 19 Matters relating to voting rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 20 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 21 Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 PART 3--RELATED BODIES 22 Related bodies corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 274 REGISTRATION ETC. OF CHARGES PART 1--PRELIMINARY 1 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 2 Application to charges mentioned in s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . 275 3 Filing of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 PART 2--REGISTRATION Division 1--Charges 4 To which charges does schedule apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 5 Excluded charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 6 Personal chattels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 7 Book debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 8 Crops or stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 9 Deposit of documents of title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 10 Charges on land or fixtures on land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 11 What if other property is also charged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 12 Effect of failure to file or give notice or document . . . . . . . . . . . . . . . . . . . 279

 


 

21 Cooperatives Division 2--Notice of charge 13 Filing of notice of charge and copy of instrument . . . . . . . . . . . . . . . . . . . 280 14 Series of debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 15 Operation of priority provisions in relation to issue of debentures . . . . . . . 281 16 Discounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 17 Acquisition of property subject to charge . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Division 3--Registration 18 Register of cooperative charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 19 Registration of documents relating to charge . . . . . . . . . . . . . . . . . . . . . . . 283 20 Provisional registration if stamp duty not paid . . . . . . . . . . . . . . . . . . . . . . 284 21 Provisional registration if required particulars not supplied . . . . . . . . . . . . 285 22 Effect of provisional registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 23 What if 2 or more charges relate to the same property . . . . . . . . . . . . . . . 287 24 Registration of assignment or variation of charge . . . . . . . . . . . . . . . . . . . . 288 25 Standard time for the purposes of this division . . . . . . . . . . . . . . . . . . . . . . 288 Division 4--Certain charges void against liquidator or administrator 26 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 27 Certain charges void against liquidator or administrator . . . . . . . . . . . . . . 289 28 Certain varied charges void against liquidator or administrator . . . . . . . . 290 29 Supreme Court may extend required period . . . . . . . . . . . . . . . . . . . . . . . . 291 30 Certain later charges void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 31 Effect of provisions on purchaser in good faith . . . . . . . . . . . . . . . . . . . . . . 292 Division 5--Certain charges in favour of persons void 32 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 33 Charges in favour of certain persons void in certain cases . . . . . . . . . . . . 294 34 Supreme Court may give leave for enforcement of charge . . . . . . . . . . . . 294 35 Certain transactions excluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Division 6--Assignment, variation or satisfaction of charges 36 Assignment and variation of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 37 Satisfaction of, and release of property from, charges . . . . . . . . . . . . . . . . 296 Division 7--General 38 Filing of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

 


 

22 Cooperatives 39 Filing offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 40 Cooperative to keep documents relating to charges . . . . . . . . . . . . . . . . . . 298 41 Cooperative to keep register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 42 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 43 Power of Supreme Court to rectify register . . . . . . . . . . . . . . . . . . . . . . . . . 300 44 Registrar may exempt from compliance with certain requirements of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 PART 3--ORDER OF PRIORITY Division 1--General 45 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 46 Priorities of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Division 2--Priority rules 47 General priority rules in relation to registered charges . . . . . . . . . . . . . . . . 304 48 General priority rule in relation to unregistered charges . . . . . . . . . . . . . . 305 49 Special priority rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . 308 RECEIVERS, AND OTHER CONTROLLERS, OF PROPERTY OF COOPERATIVES 1 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 2 Application of schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 3 Persons not to act as receivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 4 Supreme Court may declare whether controller is validly acting . . . . . . . 310 5 Liability of controller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 6 Liability of controller under pre-existing agreement about property used by cooperative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 7 Powers of receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 8 Controller's duty of care in exercising power of sale . . . . . . . . . . . . . . . . . 316 9 Supreme Court may authorise managing controller to dispose of property despite prior charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 10 Receiver's power to carry on cooperative's business during winding-up . 318 11 Controller's duties in relation to financial institution accounts and accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 12 Managing controller to report within 2 months about cooperative's affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

 


 

23 Cooperatives 13 Reports by receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 14 Supervision of controller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 15 Controller may apply to Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 322 16 Power of Supreme Court to fix receiver's remuneration . . . . . . . . . . . . . . . 323 17 Controller has qualified privilege in certain cases . . . . . . . . . . . . . . . . . . . 324 18 Notification of matters relating to controller . . . . . . . . . . . . . . . . . . . . . . . . 324 19 Statement that receiver appointed or other controller acting . . . . . . . . . . . 326 20 Officers to report to controller about cooperative's affairs . . . . . . . . . . . . . 326 21 Controller may require reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 22 Controller may inspect books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 23 Filing controller's accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 24 Payment of certain debts, out of property subject to floating charge, in priority to claims under charge . . . . . . . . . . . . . . . . . . . . . . . . . . 331 25 Enforcement of controller's duty to make returns . . . . . . . . . . . . . . . . . . . . 333 26 Supreme Court may remove controller for misconduct . . . . . . . . . . . . . . . 334 27 Supreme Court may remove redundant controller . . . . . . . . . . . . . . . . . . . . 334 28 Effect of ss 26 and 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . 336 SAVINGS AND TRANSITIONAL 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 2 General savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 3 Saving of existing cooperatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 4 Society, association or federation started to be formed . . . . . . . . . . . . . . . 337 5 Amalgamation between societies or associations . . . . . . . . . . . . . . . . . . . . 338 6 Amalgamation between societies and associations . . . . . . . . . . . . . . . . . . 339 7 Conversion of association or company into a society or society or company into an association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 8 Rules to conform with Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341 9 Changes to certain rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341 10 Rules to contain active membership provisions . . . . . . . . . . . . . . . . . . . . . 342 11 Special resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 12 Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 13 Existing accounts provisions apply to transferred cooperatives . . . . . . . . . 342

 


 

24 Cooperatives 14 Winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 15 Inspection or inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 16 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 17 Superseded references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344 18 Capital reserve fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344 19 Application for certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 20 Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 21 Conversion to a company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 22 Cooperative companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 23 Transferred cooperatives maximum permissible level of share interest . . 346 SCHEDULE 6 . . . . . . . . . . . . . . . . . . . . . . . 347 TRANSITIONAL PROVISIONS FOR TRADING COOPERATIVES WITHOUT SHARE CAPITAL 1 Purpose of schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 2 Application of schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 4 Cooperative without share capital taken to be trading cooperative . . . . . 347 5 Certain provisions do not apply to cooperatives without share capital . . . 348 6 Additional matters for rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 7 Application of ss 137 and 138 to trading cooperatives without share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 SCHEDULE 7 . . . . . . . . . . . . . . . . . . . . . . . 350 ACTS AMENDED ASSOCIATIONS INCORPORATION ACT 1981 . . . . . . . . . . . . . . . . . . . . 350 CORPORATIONS (QUEENSLAND) ACT 1990 . . . . . . . . . . . . . . . . . . . . 357 DAIRY INDUSTRY ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 FINANCIAL INTERMEDIARIES ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . 358 FRUIT MARKETING ORGANISATION ACT 1923 . . . . . . . . . . . . . . . . . 358 INDUSTRIAL DEVELOPMENT ACT 1963 . . . . . . . . . . . . . . . . . . . . . . . . 359 PENALTIES AND SENTENCES ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . 359 PRIMARY PRODUCERS' ORGANISATION AND MARKETING ACT 1926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 SAWMILLS LICENSING ACT 1936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360

 


 

25 Cooperatives STAMP ACT 1894 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 SCHEDULE 8 . . . . . . . . . . . . . . . . . . . . . . . 362 DICTIONARY

 


 

 

1997 A BILL FOR An Act to provide for the formation, registration and management of cooperatives, and for related purposes

 


 

s1 28 s4 Cooperatives The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 Division 1--Introductory 3 title 4 Short 1. This Act may be cited as the Cooperatives Act 1997. 5 6 Commencement 2. This Act commences on a day to be fixed by proclamation. 7 urpose 8 P 3. The purpose of this Act is to provide a legislative framework for the 9 formation, registration and management of cooperatives that enables 10 flexibility in the operation of cooperatives and promotes the development of 11 cooperatives. 12 of this Act 13 Objects 4. The objects of this Act are to-- 14 (a) enable the formation, registration and operation of cooperatives; 15 and 16 (b) promote cooperative philosophy, principles, practices and 17 objectives; and 18 (c) protect the interests of cooperatives, their members and the public 19 in the operations and activities of cooperatives; and 20 (d) ensure directors of cooperatives are accountable for their actions 21 and decisions to the members of cooperatives; and 22 (e) encourage and facilitate self-management by cooperatives at all 23

 


 

s5 29 s7 Cooperatives levels; and 1 (f) encourage the development, integration and strengthening of 2 cooperatives at local, regional, national and international levels by 3 supporting and fostering State and national peak organisations 4 and cooperative instrumentalities. 5 6 Dictionary 5. The dictionary in schedule 81 defines words used in this Act. 7 2--Qualified privilege provisions 8 Division privilege 9 Qualified 6.(1) If this Act provides that a person has qualified privilege for an act, 10 matter or thing, the person, in relation to the act, matter or thing-- 11 (a) has qualified privilege in a proceeding for defamation; and 12 (b) is not, in the absence of malice on the person's part, liable to an 13 action for defamation at the suit of a person. 14 (2) In subsection (1)-- 15 "malice" includes ill-will to the person concerned or any other improper 16 motive. 17 (3) Neither this section nor a provision of this Act that provides as 18 mentioned in subsection (1) limits or affects any right, privilege or 19 immunity a person has, apart from this section or that type of provision, as 20 defendant in a proceeding, or an action, for defamation. 21 Division 3--The cooperative principles 22 principles 23 Cooperative 7. The cooperative principles are the following principles-- 24 1 Schedule 8 (Dictionary)

 


 

s7 30 s7 Cooperatives 1. Voluntary and open membership 1 Cooperatives are voluntary organisations, open to all persons able 2 to use their services and willing to accept the responsibilities of 3 membership, without gender, social, racial, political or religious 4 discrimination. 5 2. Democratic member control 6 Cooperatives are democratic organisations controlled by their 7 members, who actively participate in setting their policies and 8 making decisions. Men and women serving as elected 9 representatives are accountable to the membership. In primary 10 cooperatives members have equal voting rights (1 member, 11 1 vote) and cooperatives at other levels are organised in a 12 democratic way. 13 3. Member economic participation 14 Members contribute equitably to, and democratically control, the 15 capital of their cooperative. At least part of the capital is usually 16 the common property of the cooperative. They usually receive 17 limited compensation, if any, on capital subscribed as a condition 18 of membership. Members allocate surpluses for any or all of the 19 following purposes-- 20 developing the cooperative, possibly by setting up reserves, 21 part of which at least would be indivisible 22 benefiting members in proportion to their transactions with 23 the cooperative 24 supporting other activities approved by the membership. 25 4. Autonomy and independence 26 Cooperatives are autonomous, self-help organisations controlled 27 by their members. If they enter into agreements with other 28 organisations, including governments, or raise capital from 29 external sources, they do so on terms that ensure democratic 30 control by their members and maintain their cooperative 31 autonomy. 32 5. Education, training and information 33 Cooperatives provide education and training for their members, 34

 


 

s8 31 s9 Cooperatives elected representatives, managers and employees so they can 1 contribute effectively to the development of their cooperatives. 2 They inform the general public, particularly young people and 3 opinion leaders, about the nature and benefits of cooperation. 4 6. Cooperation among cooperatives 5 Cooperatives serve their members most effectively and 6 strengthen the cooperative movement by working together 7 through local, national, regional and international structures. 8 7. Concern for the community 9 While focusing on member needs, cooperatives work for the 10 sustainable development of their communities through policies 11 accepted by their members. 12 to promote cooperative principles 13 Interpretation 8. In the interpretation of a provision of this Act, a construction that 14 would promote cooperative principles is to be preferred to a construction 15 that would not promote cooperative principles. 16 Division 4--Application of Corporations Law 17 Law applying under its own force 18 Corporations 9.(1) The provisions of the Corporations Law (other than the provisions 19 mentioned in subsection (2)) are excluded from applying under their own 20 force to cooperatives. 21 (2) However, the following provisions of the Corporations Law are not 22 excluded from applying under their own force to a cooperative-- 23 (a) provisions relating to a matter that a regulation provides is not to 24 be excluded from the operation of the Corporations Law; 25 (b) provisions relating to the role of a cooperative in the formation of 26 a company; 27 (c) provisions relating to substantial shareholdings, by or involving a 28 cooperative, in a company; 29

 


 

s 10 32 s 10 Cooperatives (d) provisions conferring or imposing functions on a cooperative as a 1 member, or former member, of a corporation; 2 (e) provisions relating to dealings by a cooperative in securities of a 3 corporation, other than securities of the cooperative itself; 4 (f) provisions conferring or imposing functions on a cooperative in 5 its dealings with a corporation, other than dealings in securities of 6 the cooperative; 7 (g) provisions relating to securities of a cooperative, other than shares 8 in, debentures of, or deposits with, a cooperative; 9 (h) provisions relating to the futures industry; 10 (i) provisions relating to participants in the securities industry; 11 (j) provisions relating to the conduct of securities business; 12 (k) provisions relating to dealers' accounts and audit; 13 (l) provisions relating to money and scrip of dealers' clients; 14 (m) provisions relating to registers of interests in securities. 15 (3) To remove doubt, it is declared that, in relation to the Corporations 16 Law, parts 1.2A, 7.11 and 7.12, subsection (1) only operates to exclude the 17 operation of those parts in relation to shares in, debentures of, or deposits 18 with, a cooperative. 19 (4) This section does not operate to give rise to any operation of the 20 Corporations Law, and does not confer any function under that Law, that 21 that Law would not otherwise have or confer of its own force. 22 (5) This section has effect despite the Corporations (Queensland) Act 23 1990 or the applicable provisions of Queensland within the meaning of that 24 Act. 25 Law adopted by this Act or the regulations 26 Corporations 10.(1) A regulation may adopt, with or without stated changes, a 27 provision of the Corporations Law for application to cooperatives. 28 (2) A provision of this Act or a regulation that adopts provisions of the 29 Corporations Law for application to cooperatives operates to apply those 30 provisions as part of this Act and the adopted provisions are to be read as 31

 


 

s 11 33 s 11 Cooperatives forming part of this Act. 1 (3) If a provision of the Corporations Law is adopted by a provision of 2 this Act or a regulation, neither the adopted provision nor the adopting 3 provision gives power to the Australian Securities Commission to 4 administer the adopted provision for this Act. 5 of adopted provisions of Corporations Law 6 Interpretation 11.(1) Provisions of the Corporations Law adopted by this Act apply 7 with any changes that may be necessary or appropriate for the effectual 8 application of the provisions to cooperatives. 9 (2) Examples of necessary or appropriate changes are as follows-- 10 (a) a reference to articles or memorandum of association is to be read 11 as a reference to rules; 12 (b) a cross-reference to another provision of the Corporations Law is, 13 if the cross-reference is not appropriate (because, for example, the 14 provision cross-referred to is not among the provisions applied), 15 to be read as a cross-reference to the equivalent provision of this 16 Act; 17 (c) a reference to the gazette is to be read as a reference to the 18 Queensland Government Gazette; 19 (d) a reference to the Commonwealth is to be read as a reference to 20 Queensland; 21 (e) provisions that are not relevant to cooperatives or incapable of 22 application to cooperatives are to be ignored; 23 (f) changes made under a regulation under subsection (3). 24 (3) A regulation may prescribe the changes necessary or desirable for the 25 effectual operation of the adopted provisions of the Corporations Law. 26 (4) Provisions of the Corporations Law adopted by or under this Act 27 apply and are to be interpreted as if the definitions of words and expressions 28 and other interpretative provisions contained in the Corporations Law 29 formed part of this Act. 30 (5) This section has effect subject to any specific requirements of 31 provisions of this Act that adopt provisions of the Corporations Law. 32

 


 

s 12 34 s 13 Cooperatives adoption of regulations and other provisions of Corporations 1 Implied Law 2 12.(1) When a provision of this Act or a regulation adopts a provision 3 ("adopted provision") of the Corporations Law for application to 4 cooperatives, the following provisions are also adopted by force of this 5 section and are to be read as forming part of this Act-- 6 (a) the provisions of any regulation ("adopted regulation") for the 7 time being in force under the adopted provision; 8 (b) any provision of the Corporations Law that creates an offence for 9 a contravention of the adopted provision; 10 (c) the provisions of the Corporations Law, part 9.4B for the 11 purposes of any provision of the Corporations Law adopted by 12 this Act that is a civil penalty provision under that part. 13 (2) A regulation under this Act may prescribe changes to any of the 14 provisions adopted by subsection (1) for the purposes of their application 15 under this section, and those provisions apply subject to the changes. 16 (3) If a provision of the Corporations Law or a regulation under that Law 17 adopted under this Act (including under this section) creates an offence and 18 the penalty for the offence is specified in another provision (the "penalty 19 provision") of the Corporations Law or the regulation, the penalty 20 provision applies for deciding the maximum penalty for the offence. 21 ART 2--FORMATION 22 P Division 1--Types of cooperatives 23 of cooperatives 24 Types 13.(1) A body may be registered under this Act as a cooperative. 25 (2) A cooperative may be either-- 26 (a) a trading cooperative; or 27 (b) a non-trading cooperative. 28

 


 

s 14 35 s 16 Cooperatives cooperatives 1 Trading 14.(1) A trading cooperative must have a share capital. 2 (2) A trading cooperative is a cooperative that gives returns or 3 distributions on surplus or share capital. 4 (3) A trading cooperative must have a membership of-- 5 (a) for an association--2 or more cooperatives; or 6 (b) for a federation--2 or more associations; or 7 (c) for another trading cooperative--5 or more active members. 8 cooperatives 9 Non-trading 15.(1) A non-trading cooperative must not give returns or distributions 10 on surplus or share capital to members, other than the nominal value of 11 shares, if any, at winding-up. 12 (2) A non-trading cooperative may or may not have a share capital. 13 (3) A non-trading cooperative must have a membership of-- 14 (a) for an association--2 or more cooperatives; or 15 (b) for a federation--2 or more associations; or 16 (c) for another non-trading cooperative--5 or more active members. 17 2--Formation meeting 18 Division meeting 19 Formation 16.(1) Before a proposed cooperative (other than an existing corporation) 20 can be registered, a formation meeting must be held under this section. 21 (2) At the formation meeting-- 22 (a) for a proposed trading cooperative--a disclosure statement 23 approved under section 17 must be presented to the meeting; and 24 (b) the proposed rules of the cooperative approved under section 18 25 for the proposed cooperative, and including active membership 26

 


 

s 16 36 s 16 Cooperatives provisions under part 6,2 must be passed by two-thirds of the 1 proposed members of the proposed cooperative attending the 2 meeting; and 3 (c) the proposed members of the proposed cooperative must sign the 4 application for membership; and 5 (d) the proposed members must elect the first directors of the 6 proposed cooperative under the proposed rules; and 7 (e) the proposed members must authorise a person-- 8 (i) to apply to the registrar for registration of the proposed 9 cooperative; and 10 (ii) to do anything necessary to have the proposed cooperative 11 registered. 12 (3) The formation meeting must be held by-- 13 (a) for an association--not less than 2 suitably qualified cooperatives; 14 or 15 (b) for a federation--not less than 2 suitably qualified associations; or 16 (c) for another cooperative--not less than 5 persons suitably 17 qualified to be members of the proposed cooperative. 18 (4) For subsection (3), a person is suitably qualified to be a member if-- 19 (a) there are reasonable grounds to believe the person will be an 20 active member of the proposed cooperative; and 21 (b) for an individual--the person is 18 or older; and 22 (c) the person satisfies any other requirements for membership in the 23 proposed rules. 24 (5) Each cooperative forming a proposed association and each 25 association forming a proposed federation may be represented at the 26 formation meeting by 1 person. 27 2 Part 6 (Active membership)

 


 

s 17 37 s 17 Cooperatives Division 3--Approval of disclosure statement and rules 1 of disclosure statement 2 Approval 17.(1) A draft disclosure statement of a proposed trading cooperative 3 must be submitted to the registrar at least 28 days (or the shorter period the 4 registrar may allow in a particular case) before the formation meeting is due 5 to be held. 6 (2) The disclosure statement must contain the information necessary to 7 ensure prospective members are adequately informed of the nature and 8 extent of a person's financial involvement or liability as a member of the 9 cooperative including so far as applicable-- 10 (a) the estimated costs of formation; and 11 (b) the nature of the proposed membership of the cooperative; and 12 (c) the rights and liabilities attaching to shares in the proposed 13 cooperative (including the capital required for the cooperative); 14 and 15 (d) the projected income and expenditure of the cooperative for its 16 first year of operation; and 17 (e) information about any contracts required to be entered into by the 18 cooperative; and 19 (f) any other information that the registrar directs. 20 (3) The disclosure statement must not include a statement purporting to 21 be made by an expert or to be based on a statement made by an expert 22 unless-- 23 (a) the expert has given, and has not withdrawn, the expert's written 24 consent to the submission of the disclosure statement with the 25 statement included in the form and context in which it is included; 26 and 27 (b) there appears in the disclosure statement a statement that the 28 expert has given, and has not withdrawn, the expert's consent. 29 (4) The registrar may-- 30 (a) approve the draft statement as submitted; or 31

 


 

s 18 38 s 18 Cooperatives (b) approve a different statement to that submitted; or 1 (c) refuse to approve the statement. 2 (5) Approval may be given at any time before the formation meeting is 3 held. 4 (6) Subject to subsection (7), the registrar approves of a disclosure 5 statement by giving notice of the approval of the statement to the person 6 who submitted the draft statement to the registrar. 7 (7) The registrar is taken to have approved the disclosure statement as 8 submitted to the registrar unless at least 5 days before the formation 9 meeting is due to be held-- 10 (a) the registrar gives notice of approval of a different disclosure 11 statement; or 12 (b) the registrar gives notice to the person who submitted the draft 13 statement that the registrar is still considering the matter; or 14 (c) the registrar gives notice of refusal to approve the disclosure 15 statement and the reasons for the refusal. 16 (8) A notice under this section must be in writing. 17 of rules 18 Approval 18.(1) A draft of the rules proposed for the cooperative (including active 19 membership provisions under part 63) must be submitted to the registrar at 20 least 28 days (or the shorter period the registrar may allow in a particular 21 case) before the formation meeting is due to be held. 22 (2) The proposed rules must-- 23 (a) be in accordance with section 101;4 and 24 (b) be in a form that may reasonably be approved; and 25 (c) if the rules contain any alterations of the model rules--be 26 accompanied by a statement showing the alterations and the 27 reasons for the alterations. 28 3 Part 6 (Active membership) 4 Section 101 (Content of rules)

 


 

s 19 39 s 19 Cooperatives (3) If the rules do not make provision for any matter included in the 1 model rules, the registrar may approve the relevant provisions of the model 2 rules as rules of the cooperative. 3 (4) The registrar may-- 4 (a) approve the rules as submitted; or 5 (b) approve different rules to those submitted; or 6 (c) refuse to approve the rules. 7 (5) The registrar approves of the rules by giving written notice of the 8 approval of the rules to the person who submitted the draft rules to the 9 registrar. 10 (6) The registrar must give written notice of the refusal to approve the 11 rules and the reasons for the refusal to the person who submitted the rules 12 to the registrar. 13 Division 4--Registration of proposed cooperative 14 for registration of proposed cooperative 15 Application 19.(1) An application for registration of a proposed cooperative (other 16 than an existing corporation) must-- 17 (a) be made in the approved form; and 18 (b) be accompanied by the fee prescribed under a regulation; and 19 (c) be signed by-- 20 (i) for an association or federation--at least 2 directors; and 21 (ii) for any other proposed cooperative--at least 5 suitably 22 qualified members, including 2 directors elected at the 23 formation meeting; and 24 (d) be accompanied by-- 25 (i) 2 copies of the proposed rules signed and certified by the 26 persons who acted as chairperson and secretary at the 27 formation meeting; and 28 (ii) for a proposed trading cooperative--a copy of the disclosure 29

 


 

s 20 40 s 20 Cooperatives statement presented to the formation meeting signed and 1 certified by the persons who acted as chairperson and 2 secretary at the formation meeting; and 3 (iii) a statement listing the name, address, occupation and place 4 and date of birth of each director; and 5 (iv) any other particulars the registrar may require in a particular 6 case. 7 (2) The application must be filed with the registrar within 2 months after 8 closure of the formation meeting for the proposed cooperative or within the 9 extended period that the registrar may allow. 10 of cooperative 11 Registration 20.(1) If an application is made under this division for registration of a 12 proposed cooperative, the registrar must register the cooperative and its 13 rules if satisfied the requirements for registration of the cooperative have 14 been met. 15 (2) The requirements for registration of a cooperative under this division 16 are as follows-- 17 (a) the proposed rules of the proposed cooperative must be the rules 18 approved by the registrar under section 18;5 19 (b) the requirements of this Act must have been complied with in 20 relation to the proposed cooperative and compliance must be 21 likely to continue; 22 (c) the proposed cooperative must be designed to function under the 23 cooperative principles or, if it is not designed to function entirely 24 under the cooperative principles, the registrar must be satisfied 25 there are special reasons why the cooperative should be registered 26 under this Act; 27 (d) there must be no reasonable cause for refusing registration of the 28 proposed cooperative. 29 (3) If the registrar is not satisfied the requirements for registration of the 30 cooperative have been met, the registrar may refuse to register the 31 5 Section 18 (Approval of rules)

 


 

s 21 41 s 23 Cooperatives cooperative and its rules. 1 (4) The registrar must give to the applicant written notice of the refusal 2 and the reasons for the refusal. 3 and certificate of registration 4 Incorporation 21.(1) The incorporation of the cooperative takes effect on the registration 5 of the cooperative. 6 (2) On the registration of the cooperative, the registrar must issue a 7 certificate of registration. 8 Division 5--Registration of an existing corporation 9 corporation can be registered 10 Existing 22. A corporation (other than a cooperative taken to be registered under 11 this Act) may apply to the registrar to be registered as a cooperative under 12 this Act, if before or after the commencement of this Act, the corporation 13 was-- 14 (a) incorporated or registered or taken to be registered under the 15 Corporations Law; or 16 (b) incorporated or registered under another Act relating to the 17 incorporation or registration of corporations. 18 meeting 19 Formation 23.(1) Before applying for registration as a cooperative, the corporation 20 must pass a special resolution under its articles of association or rules 21 approving of-- 22 (a) the proposed registration; and 23 (b) any alterations of its existing memorandum and articles of 24 association or rules necessary to enable the corporation to comply 25 with this Act. 26 (2) At the meeting to pass the special resolution-- 27

 


 

s 24 42 s 24 Cooperatives (a) the proposed rules of the proposed cooperative approved under 1 section 18, 6 and including active membership provisions under 2 part 6,7 must also be passed by special resolution; and 3 (b) for a proposed trading cooperative--a disclosure statement 4 approved under section 178 must be presented to the meeting. 5 for registration 6 Application 24. An application for registration must be-- 7 (a) in the approved form; and 8 (b) accompanied by the fee prescribed under a regulation; and 9 (c) accompanied by-- 10 (i) a written declaration signed by the directors or the committee 11 of management of the corporation stating that, at a meeting 12 of the directors or committee, they formed the opinion that 13 the corporation will be able to pay its debts as they fall due; 14 and 15 (ii) a report in the approved form as to the affairs of the 16 corporation and showing its assets and liabilities, made up to 17 the latest practicable date before the application; and 18 (iii) a copy of the memorandum and articles of association or 19 rules of the corporation in force at the date of the application; 20 and 21 (iv) 2 copies of the proposed rules of the cooperative, as 22 provided for by the special resolution; and 23 (v) for a proposed trading cooperative--a copy of the disclosure 24 statement presented to the meeting held under section 23 and 25 signed and certified by the directors or committee of 26 management of the corporation; and 27 (vi) a list containing the name, address, occupation and place and 28 6 Section 18 (Approval of rules) 7 Part 6 (Active membership) 8 Section 17 (Approval of disclosure statement)

 


 

s 25 43 s 25 Cooperatives date of birth of each director; and 1 (vii) evidence to the satisfaction of the registrar of the 2 incorporation of the existing corporation; and 3 (viii)any other particulars the registrar may require in a particular 4 case. 5 for registration 6 Requirements 25.(1) When an application is made for registration of a cooperative 7 under this division, the registrar must register the corporation as a 8 cooperative under this Act and register its rules under this Act if the 9 registrar is satisfied the requirements for registration of the cooperative have 10 been met. 11 (2) The requirements for registration of a cooperative under this division 12 are as follows-- 13 (a) the proposed rules of the proposed cooperative must be the rules 14 approved by the registrar under section 18;9 15 (b) the requirements of this Act must have been complied with in 16 relation to the proposed cooperative and compliance must be 17 likely to continue; 18 (c) there must be no reasonable cause for refusing registration of the 19 proposed cooperative. 20 (3) If the registrar is not satisfied the requirements for registration of the 21 cooperative have been met, the registrar may refuse to register the 22 cooperative and its rules and must give to the applicant written notice of the 23 refusal and the reasons for the refusal. 24 (4) If the registrar has decided under this section to register a corporation 25 under this Act, the corporation must notify the authority responsible for 26 registering the corporation under the law under which it was previously 27 registered of that decision. 28 (5) Despite anything to the contrary in this division, the registration of a 29 corporation as a cooperative does not take effect until the corporation ceases 30 to be registered under the law under which it was previously registered. 31 9 Section 18 (Approval of rules)

 


 

s 26 44 s 28 Cooperatives (6) The corporation must notify the registrar in writing within 7 days 1 after ceasing to be registered under that other law. 2 of registration 3 Certificate 26.(1) On the registration of the corporation as a cooperative, the registrar 4 must-- 5 (a) issue a certificate of registration; and 6 (b) publish notice of the issue of the certificate in the gazette. 7 (2) The corporate name of a corporation registered as a cooperative is the 8 name approved by the registrar, as stated in the certificate of registration 9 issued by the registrar. 10 of registration 11 Effect 27.(1) The corporation is to be taken to be incorporated under this Act on 12 its registration. 13 (2) Except as expressly provided in this Act, the registration and 14 incorporation of the corporation as a cooperative does not prejudice any 15 right of a member in relation to any shares held at the time of registration 16 and incorporation. 17 (3) The change of registration and incorporation does not affect the 18 identity of the corporation that is taken to be the same body after registration 19 as a cooperative as it was before and no act, matter or thing is affected by 20 the change. 21 6--Conversion of cooperative 22 Division of cooperative 23 Conversion 28.(1) A cooperative may, by alteration of its rules, convert from-- 24 (a) a cooperative with share capital to a cooperative without share 25 capital, or vice versa; or 26 (b) a trading cooperative to a non-trading cooperative, or vice versa. 27

 


 

s 29 45 s 33 Cooperatives (2) An alteration of the rules for the conversion of a cooperative must be 1 approved by special resolution passed by a special postal ballot. 2 Division 7--Appeals 3 against refusal to approve disclosure statement 4 Appeal 29. The person who submitted a draft disclosure statement to the 5 registrar under this Act may appeal to the Supreme Court against a failure 6 of the registrar to approve the statement. 7 against refusal to approve draft rules 8 Appeal 30. The person who submitted draft rules to the registrar under this Act 9 may appeal to the Supreme Court against a failure of the registrar to 10 approve the rules. 11 against refusal to register 12 Appeal 31. The applicants for registration of a proposed cooperative under this 13 part may appeal to the Supreme Court against a failure of the registrar to 14 register the cooperative. 15 Court's powers on appeal 16 Supreme 32. The Supreme Court may make any order it considers appropriate to 17 dispose of an appeal under this division. 18 8--General 19 Division of money by proposed cooperative 20 Acceptance 33.(1) A proposed cooperative or any person on its behalf or otherwise 21 who accepts money for the proposed cooperative before the proposed 22 cooperative is registered must hold that money on trust until the cooperative 23 is registered. 24

 


 

s 34 46 s 36 Cooperatives (2) If a cooperative is not registered within 3 months after the acceptance 1 of money under subsection (1), the proposed cooperative or the person who 2 accepted the money on its behalf must refund the money to the person who 3 paid it. 4 Maximum penalty--60 penalty units. 5 of duplicate certificate 6 Issue 34. The registrar must issue a duplicate certificate of registration-- 7 (a) if the registrar is satisfied the original certificate is lost or 8 destroyed; and 9 (b) on payment of the fee prescribed under a regulation. 10 PART 3--LEGAL CAPACITY AND POWERS 11 1--General powers 12 Division of incorporation 13 Effect 35. As a corporation, a cooperative-- 14 (a) has perpetual succession; and 15 (b) has a common seal; and 16 (c) may sue and be sued in its corporate name; and 17 (d) subject to this Act, is capable of taking, purchasing, leasing, 18 holding, selling and disposing of real and personal property; and 19 (e) may do and suffer all acts and things that corporations may by 20 law do and suffer and that are necessary or expedient. 21 to form companies and enter into joint ventures 22 Power 36. Without limiting any other provision of this Act, a cooperative has 23 power-- 24

 


 

s 37 47 s 39 Cooperatives (a) to form or participate in the formation of a corporation or unit 1 trust; and 2 (b) to acquire interests in and sell or otherwise dispose of interests in 3 corporations, unit trusts and joint ventures; and 4 (c) to form or enter into a partnership, joint venture or other 5 association with other persons or bodies. 6 Division 2--Doctrine of ultra vires abolished 7 8 Interpretation 37. In this division-- 9 (a) a reference to the doing of an act by a cooperative includes a 10 reference to the making of an agreement by the cooperative and a 11 reference to a transfer of property to or by the cooperative; and 12 (b) a reference to legal capacity includes a reference to powers. 13 of ultra vires abolished 14 Doctrine 38.(1) The objects of this division are-- 15 (a) to provide that the doctrine of ultra vires does not apply to 16 cooperatives; and 17 (b) without affecting the validity of a cooperative's dealings with 18 others--to ensure the cooperative's officers and members give 19 effect to the provisions of the cooperative's rules relating to the 20 primary activities or powers of the cooperative. 21 (2) This division is to be construed and have effect in accordance with 22 subsection (1). 23 capacity 24 Legal 39.(1) A cooperative has, both within and outside the State, the legal 25 capacity of an individual. 26 (2) Without limiting subsection (1), a cooperative has, both within and 27

 


 

s 40 48 s 40 Cooperatives outside the State, power-- 1 (a) to issue and allot fully or partly paid shares in the cooperative; and 2 (b) to issue debentures of the cooperative; and 3 (c) to distribute any of the property of the cooperative among the 4 members, in kind or otherwise; and 5 (d) to give security by charging uncalled capital; and 6 (e) to grant a charge on property of the cooperative; and 7 (f) to procure the cooperative to be registered or recognised as a 8 corporation in any place outside the State; and 9 (g) to do any other act it is authorised to do by any other law 10 (including a law of a place outside the State). 11 (3) Subsections (1) and (2) have effect in relation to a cooperative-- 12 (a) subject to this Act but despite section 40(2); and 13 (b) if the cooperative's rules contain an express or implied restriction 14 on, or an express or implied prohibition of, the exercise by the 15 cooperative of any of its powers--despite that restriction or 16 prohibition; and 17 (c) if the rules of the cooperative contain a provision stating the 18 objects of the cooperative--despite that fact. 19 (4) The fact that the doing of an act by a cooperative would not be, or is 20 not, in its best interests does not affect its legal capacity to do the act. 21 on cooperatives in rules 22 Restrictions 40.(1) A cooperative's rules may contain an express restriction on, or an 23 express prohibition of, the exercise by the cooperative of a power of the 24 cooperative. 25 (2) A cooperative contravenes this section if-- 26 (a) it exercises a power contrary to an express restriction on, or an 27 express prohibition of, the exercise of that power, being a 28 restriction or prohibition contained in the cooperative's rules; or 29 (b) the rules of the cooperative contain a provision stating the objects 30

 


 

s 41 49 s 41 Cooperatives of the cooperative and the cooperative does an act otherwise than 1 in pursuance of those objects. 2 (3) An officer of a cooperative who is involved in a contravention by the 3 cooperative of this section also contravenes this section. 4 (4) A person who contravenes this section is not guilty of an offence. 5 of contravention of restriction in rules 6 Results 41.(1) The exercise of a power or the doing of an act in contravention of 7 section 40 is not invalid merely because of the contravention. 8 (2) An act of an officer of a cooperative is not invalid merely because, by 9 doing the act, the officer contravenes section 40. 10 (3) The fact that the exercise of a power or the doing of an act 11 contravenes or would contravene section 40 may be asserted or relied on 12 only in-- 13 (a) a prosecution of a person for an offence against this Act; or 14 (b) an application for an order under part 4, division 5;10 or 15 (c) an application for an injunction under section 46011 to restrain the 16 cooperative from entering into an agreement; or 17 (d) a proceeding, other than an application for an injunction, by the 18 cooperative, or by a member of the cooperative, against the 19 present or former officers of the cooperative; or 20 (e) an application by the registrar or by a member of the cooperative 21 for the winding-up of the cooperative. 22 (4) If, apart from subsection (3), a court would have power under 23 section 460 to grant, on the application of a person, an injunction restraining 24 a cooperative or an officer of a cooperative from engaging in particular 25 conduct constituting a contravention of section 40, the court may, on the 26 application of that person, order the cooperative or the officer to pay 27 damages to that person or any other person. 28 10 Part 4, division 5 (Oppressive conduct of affairs) 11 Section 460 (Injunctions)

 


 

s 42 50 s 43 Cooperatives Division 3--Persons having dealings with cooperatives 1 entitled to be made 2 Assumptions 42.(1) A person may make the assumptions in section 43 in relation to-- 3 (a) dealings with a cooperative; or 4 (b) dealings with a person who has, or purports to have, directly or 5 indirectly acquired title to property from a cooperative. 6 (2) If a person may assume a matter, the cooperative or anyone 7 mentioned in subsection (1)(b) can not assert in a proceeding in relation to 8 the dealings that the matter is incorrect. 9 ssumptions 10 A 43.(1) A person may assume that the cooperative's rules have been 11 complied with. 12 (2) A person may assume that anyone who appears, from information 13 provided by the cooperative that is available to the public from the registrar, 14 to be a director or officer of the cooperative-- 15 (a) has been properly appointed; and 16 (b) has authority to exercise the powers and perform the duties 17 customarily exercised or performed by a director or officer of a 18 similar cooperative. 19 (3) A person may assume that anyone who is held out by the cooperative 20 to be an officer or agent of the cooperative-- 21 (a) has been properly appointed; and 22 (b) has authority to exercise the powers and perform the duties 23 customarily exercised or performed by that kind of officer or 24 agent of a similar cooperative. 25 (4) A person may assume that anyone who is, or may be assumed to be, 26 an officer or agent of the cooperative who has authority to issue a document 27 or a certified copy of a document on its behalf also has authority to warrant 28 that the document is genuine or is a true copy. 29 (5) A person may assume that a document has been properly executed 30

 


 

s 44 51 s 45 Cooperatives by the cooperative if it is signed by 2 people, 1 of whom is, or may be 1 assumed to be, a director of the cooperative, and the other is, or may be 2 assumed to be, a director or officer of the cooperative. 3 (6) A person may assume that a document has been sealed by the 4 cooperative if it bears what appears to be an impression of the cooperative's 5 seal and the sealing of the document appears to be witnessed by 2 people, 6 1 of whom is, or may be assumed to be, a director of the cooperative, and 7 the other is, or may be assumed to be, a director or officer of the 8 cooperative. 9 (7) A person may assume that the officers and agents of the cooperative 10 properly perform their duties to the cooperative. 11 erson who knows or ought to know can not make assumptions 12 P 44. This division does not entitle a person to make an assumption, and 13 does not prevent an assertion being made in relation to an assumption if-- 14 (a) the person has actual knowledge that the assumption is not 15 correct; or 16 (b) the person ought to know the assumption is not correct because 17 of the nature of the person's connection or relationship with the 18 cooperative. 19 of documents not to constitute constructive knowledge 20 Filing 45.(1) A person is not considered to have knowledge of a cooperative's 21 rules, any of the contents of a cooperative's rules, a document, the contents 22 of a document, or any particulars, merely because of either or both of the 23 following-- 24 (a) the rules, the document or the particulars have been filed with the 25 registrar; 26 (b) the rules, the document or the particulars are mentioned in any 27 other document that has been filed with the registrar, or filed with 28 a person under a previous law corresponding to a provision of 29 this Act. 30 (2) Subsection (1) does not apply to a document, or the contents of a 31

 


 

s 46 52 s 48 Cooperatives document, that has been filed under part 10, division 212 to the extent that 1 the document relates to a charge that is registrable under that division or 2 law. 3 (3) Despite subsection (1), a member of a cooperative is taken to have 4 knowledge of the rules of the cooperative. 5 of fraud 6 Effect 46.(1) A person's entitlement under this division to make an assumption 7 is not affected merely by the fact that any person-- 8 (a) has acted or is acting fraudulently in relation to the dealing, 9 acquisition or purported acquisition of title to property to which 10 the assumption relates; or 11 (b) has forged a document that appears to have been sealed on behalf 12 of a cooperative. 13 (2) A person may not make an assumption if the person has actual 14 knowledge of the fraudulent action or forgery mentioned in subsection (1). 15 Division 4--Authentication and execution of documents and 16 confirmation of contracts 17 seal 18 Common 47. A document or proceeding requiring authentication by a cooperative 19 may be authenticated under the common seal of the cooperative. 20 seal 21 Official 48.(1) A cooperative may, if authorised by its rules, have, for use in 22 place of its common seal outside the State where its common seal is kept, 23 1 or more official seals, each of which must be a facsimile of the common 24 seal of the cooperative with the addition on its face of the name of the place 25 where it is to be used. 26 12 Part 10, division 2 (Charges)

 


 

s 49 53 s 51 Cooperatives (2) The person attaching an official seal must, by signed writing, certify 1 on the instrument to which it is attached the date on which and the place at 2 which it is attached. 3 (3) A document sealed with an official seal under this section is taken to 4 be sealed with the common seal of the cooperative. 5 need not be under seal 6 Authentication 49. A document or proceeding requiring authentication by a cooperative 7 may be authenticated by the signature of 2 people, 1 of whom is a director 8 of the cooperative and 1 of whom is a director or an officer of the 9 cooperative and need not be authenticated under the seal of the cooperative. 10 may authorise person to execute deed 11 Cooperative 50.(1) A cooperative may, by writing under its common seal, empower a 12 person, either generally or in relation to a stated matter, as its agent or 13 attorney ("authorised attorney") to execute deeds on its behalf. 14 (2) A deed signed by an authorised attorney on behalf of the cooperative 15 and under the seal of the attorney, or under the appropriate official seal of 16 the cooperative, binds the cooperative and has effect as if it were under the 17 common seal of the cooperative. 18 (3) The authority of an authorised attorney, as between the cooperative 19 and a person dealing with the attorney, continues during the period, if any, 20 mentioned in the instrument conferring the authority or, if no period is 21 mentioned, until notice of the revocation or termination of the authority of 22 the attorney has been given to the person dealing with the attorney. 23 under seal 24 Execution 51. A contract or other document executed, or purporting to have been 25 executed, under the seal of a cooperative is not invalid merely because a 26 person certifying the attaching of the seal was in any way, whether directly 27 or indirectly, interested in that contract or other document or in the matter to 28 which the contract or other document relates. 29

 


 

s 52 54 s 55 Cooperatives formalities 1 Contractual 52.(1) So far as concerns the formalities of making, varying or 2 discharging a contract, a person acting under the express or implied 3 authority of a cooperative may make, vary or discharge a contract in the 4 name of, or on behalf of, the cooperative as if the contract were made, 5 varied or discharged by an individual. 6 (2) The making, varying or discharging of a contract under 7 subsection (1) is effectual in law and binds the cooperative and other parties 8 to the contract. 9 (3) This section does not prevent a cooperative from making, varying or 10 discharging a contract under its seal. 11 requirements as to consent or sanction not affected 12 Other 53. This division does not affect the operation of a law that requires some 13 consent or sanction to be obtained, or some procedure to be complied with, 14 in relation to the making, varying or discharging of a contract. 15 16 Transitional 54. This division does not apply to the making, varying or discharging of 17 a contract before the commencement of this division, but applies otherwise 18 to a cooperative whether it gives its authority before, on, or after, the 19 commencement. 20 Division 5--Pre-registration contracts 21 before registration 22 Contracts 55.(1) If a person enters into, or purports to enter into, a contract on 23 behalf of, or for the benefit of, a proposed cooperative, the cooperative 24 becomes bound by the contract and entitled to its benefit if the cooperative, 25 or a cooperative that is reasonably identifiable with it, is registered and 26 ratifies the contract-- 27 (a) within a reasonable period after the contract is entered into; or 28 (b) within any period agreed to by the parties to the contract. 29

 


 

s 56 55 s 56 Cooperatives (2) The person is released from any liability under the pre-registration 1 contract if the cooperative enters into another contract in substitution for it-- 2 (a) within a reasonable period after the pre-registration contract is 3 entered into; or 4 (b) within any period agreed to by the parties to the pre-registration 5 contract. 6 (3) The person is liable to pay damages to each other party to the 7 pre-registration contract if a cooperative is not registered, or a cooperative is 8 registered but does not ratify the contract or enter into a substitute for it-- 9 (a) within a reasonable period after the contract is entered into; or 10 (b) within the period agreed to by the parties to the contract. 11 (4) The maximum amount of damages the person is liable to pay to a 12 party is the amount the cooperative would be liable to pay to the party if the 13 cooperative had been registered and had ratified the contract and then 14 completely failed to perform it. 15 (5) If a proceeding is brought to recover damages under subsection (3) 16 because the cooperative is registered but does not ratify the pre-registration 17 contract or enter into a substitute for it, the court may do anything it thinks 18 just in the circumstances, including ordering the cooperative-- 19 (a) to pay all or part of the damages the person is liable to pay; or 20 (b) to transfer property the cooperative received because of the 21 contract to a party to the contract; or 22 (c) to pay an amount to a party to the contract. 23 (6) If the cooperative ratifies the pre-registration contract but fails to 24 perform all or part of it, the court may order the person to pay all or part of 25 the damages that the cooperative is ordered to pay. 26 may be released from liability but is not entitled to indemnity 27 Person 56.(1) Any of the parties to the pre-registration contract may release the 28 person who entered into, or purported to enter into, the contract from any 29 liability in relation to that contract. 30 (2) The release must be in writing. 31

 


 

s 57 56 s 58 Cooperatives (3) The party giving the release can not recover damages under 1 section 55 from the person. 2 (4) Despite any rule of law or equity, the person does not have a right of 3 indemnity against the cooperative in relation to the person's liability under 4 this division even if the person was acting, or purporting to act, as trustee 5 for the cooperative. 6 division replaces other rights and liabilities 7 This 57. This division replaces any rights or liabilities anyone would 8 otherwise have in relation to the pre-registration contract. 9 ART 4--MEMBERSHIP 10 P 1--General 11 Division a member 12 Becoming 58.(1) On the registration of a cooperative, the persons who signed the 13 application for registration become members of the cooperative. 14 (2) Other persons may be admitted as members of the cooperative as 15 provided by its rules. 16 (3) A person who is under 18 may be admitted as a member of the 17 cooperative unless the rules of the cooperative otherwise provide. 18 (4) A corporation is not (merely because it is a corporation) disqualified 19 from being a member of a cooperative unless the cooperative's rules 20 provide that corporations are disqualified from being members. 21 (5) If 2 or more cooperatives merge, the members of the merged 22 cooperative are-- 23 (a) the members of the merging cooperatives; and 24 (b) other persons admitted as members of the merged cooperative 25 under its rules. 26

 


 

s 59 57 s 61 Cooperatives of associations 1 Members 59.(1) The members of an association are-- 2 (a) the component cooperatives by which the association is formed; 3 and 4 (b) any other cooperative admitted to membership under the rules of 5 the association; and 6 (c) any other corporation or other body admitted to membership 7 under subsection (2). 8 (2) A corporation or other body (not being a cooperative) may be 9 admitted to membership of the association as a component cooperative if-- 10 (a) it is incorporated or registered under another law, whether or not a 11 law of Queensland; and 12 (b) in the opinion of the board of the association, it is designed to 13 function under cooperative principles; and 14 (c) it is eligible to be admitted to membership under the rules of the 15 association. 16 of federations 17 Members 60.(1) The members of a federation of associations are-- 18 (a) the associations by which the federation is formed; and 19 (b) any other associations admitted to membership under the rules of 20 the federation; and 21 (c) any corporations admitted to membership under subsection (2). 22 (2) If the registrar certifies there is no association to which a particular 23 corporation could conveniently or appropriately be admitted to membership, 24 the corporation may be admitted to membership of a federation. 25 for membership 26 Qualification 61.(1) A person is not qualified to be admitted to membership of a 27 cooperative unless-- 28 (a) there are reasonable grounds for believing the person will be an 29

 


 

s 62 58 s 64 Cooperatives active member of the cooperative; and 1 (b) the person is otherwise eligible under the rules of the cooperative. 2 (2) The rules of a cooperative must contain provisions that-- 3 (a) impose a duty on all persons who become members to be active 4 members; and 5 (b) explain the consequences of failing to be or ceasing to be an active 6 member. 7 may be joint 8 Membership 62. Membership of a cooperative may be individual and, unless the rules 9 of the cooperative provide otherwise, may be joint. 10 under 18 11 Members 63.(1) A member of a cooperative is not entitled to avoid any obligation 12 or liability as a member under a contract, deed or other document entered 13 into as a member on any ground relating to minority. 14 (2) A person who is under 18 is not competent to hold any office in a 15 cooperative. 16 (3) A member of a cooperative who is under 18 is not entitled to vote. 17 (4) This section applies only to individuals. 18 of corporations 19 Representatives 64.(1) If a corporation is a member of a cooperative, it may by 20 instrument served on the cooperative appoint a person to represent it in 21 relation to its membership. 22 (2) A corporation must not appoint a person to represent the corporation 23 as a member of a cooperative, if he or she is currently a member of the 24 cooperative or a representative of another corporation member. 25 Maximum penalty--10 penalty units. 26 (3) The power to appoint a representative is subject to any restriction 27 imposed by the rules of the cooperative as to the entitlement of a person to 28

 


 

s 65 59 s 66 Cooperatives represent a corporation. 1 (4) A person is not qualified to be appointed the representative of a 2 company that is not a listed corporation (within the meaning of the 3 Corporations Law) unless the person is an officer, member or employee of 4 the company. 5 of shareholders and shareholdings 6 Notification 65. On the request of the board of directors of the cooperative, a 7 corporation that is a member of the cooperative must make available for 8 inspection by the board of directors of the cooperative-- 9 (a) a list of the names of all the shareholders of that corporation and 10 the number of shares held by each shareholder; or 11 (b) for a corporation without share capital--a list of the members of 12 the corporation. 13 Maximum penalty--20 penalty units. 14 in which membership ceases--all cooperatives 15 Circumstances 66.(1) A person ceases to be a member of a cooperative in each of the 16 following circumstances and as otherwise provided by this Act-- 17 (a) if the member's membership is cancelled under part 6;13 18 (b) if the member is expelled or resigns under the rules of the 19 cooperative; 20 (c) if-- 21 (i) the member becomes bankrupt; or 22 (ii) the member's property becomes subject to control under the 23 law relating to bankruptcy; 24 unless provision is made to the contrary in the rules of the 25 cooperative; 26 (d) on death; 27 13 Part 6 (Active membership)

 


 

s 67 60 s 68 Cooperatives (e) if the contract of membership is rescinded on the ground of 1 misrepresentation or mistake; 2 (f) for a member that is a corporation--if the body is dissolved. 3 (2) On the death of a member, the member's estate remains liable as the 4 member until the member's personal representative or some other person is 5 registered in the member's place. 6 circumstances in which membership ceases--cooperatives 7 Additional with share capital 8 67. For a cooperative that has a share capital, in addition to the 9 circumstances in section 66, a member ceases to be a member if-- 10 (a) the member's share is transferred to another person under the 11 rules of the cooperative, and the transferee is registered as holder 12 in his or her place; or 13 (b) the member's share is forfeited under this Act or the rules of the 14 cooperative; or 15 (c) the member's share is sold by the cooperative under a power 16 conferred by the rules of the cooperative, and the purchaser is 17 registered as holder in his or her place; or 18 (d) the member's share is purchased by the cooperative under this 19 Act; or 20 (e) the amount paid up on the member's shares is repaid to the 21 member under the rules of the cooperative. 22 on business with too few members 23 Carrying 68.(1) A person who is a director of a cooperative must not knowingly 24 allow the cooperative to continue to carry on business with fewer than the 25 minimum number of members allowed for more than 28 days after the 26 number of members falls below the minimum number. 27 Maximum penalty--20 penalty units. 28 (2) Each person who is found guilty of an offence under subsection (1) 29 is also liable to satisfy all obligations of the cooperative incurred after the 30 28 days mentioned in subsection (1), and may be sued without any other 31

 


 

s 69 61 s 70 Cooperatives member being joined in the action. 1 (3) The minimum number of members allowed is-- 2 (a) for an association or federation--2; or 3 (b) for any other cooperative--5. 4 (4) The registrar may, by written notice, extend and further extend in a 5 particular case the period of 28 days mentioned in subsection (1). 6 (5) An application for an extension must be made in the approved form 7 before the period to be extended ends. 8 2--Rights and liabilities of members 9 Division of membership not exercisable until registered etc. 10 Rights 69.(1) A member of a cooperative is not entitled to exercise any rights of 11 membership until-- 12 (a) the member's name appears in the register of members; and 13 (b) the member has made any payment to the cooperative for 14 membership or acquired any share or interest that is provided in 15 the rules of the cooperative. 16 (2) The board of a cooperative must ensure the name of a person 17 admitted to membership is recorded in the register of members within 18 28 days after the person is admitted to membership. 19 Maximum penalty for subsection (2)--20 penalty units. 20 of members to cooperative 21 Liability 70.(1) A member of a cooperative is not, as a member, under any 22 personal liability to the cooperative, except as provided by this section. 23 (2) A member of a cooperative with a share capital is liable to the 24 cooperative for the amount, if any, unpaid on the shares held by the 25 member together with any charges payable by the member to the 26 cooperative as required by the rules of the cooperative. 27 (3) A member of a cooperative without a share capital is liable to the 28

 


 

s 71 62 s 72 Cooperatives cooperative for any charges payable by the member to the cooperative as 1 required by the rules of the cooperative. 2 to give information to person intending to become a 3 Cooperative member 4 71.(1) The board of a cooperative must give each person intending to 5 become a member of the cooperative-- 6 (a) a consolidated copy of the rules of the cooperative; and 7 (b) a copy of all special resolutions that apply to the member passed 8 by the members of the cooperative, except special resolutions 9 providing for an alteration of the rules of the cooperative; and 10 (c) a copy of the last annual report of the cooperative under 11 section 242.14 12 (2) The board of a non-trading cooperative or, with the consent of the 13 registrar, the board of a trading cooperative may comply with subsection (1) 14 by-- 15 (a) giving the person intending to become a member notice that the 16 documents mentioned in subsection (1) may be inspected by the 17 person at the registered office of the cooperative; and 18 (b) making the documents available for inspection. 19 fees and regular subscriptions 20 Entry 72.(1) The rules of a cooperative may-- 21 (a) require the payment by members of entry fees and regular 22 subscriptions; and 23 (b) provide for the repayment of the fees and subscriptions on a 24 person ceasing to be a member. 25 (2) A cooperative must give to any person intending to become a 26 member written notice of entry fees or regular subscriptions payable by a 27 member to the cooperative. 28 14 Section 242 (Annual report)

 


 

s 73 63 s 73 Cooperatives (3) A person who becomes a member of the cooperative is not liable to 1 pay entry fees or regular subscriptions except-- 2 (a) the fees or subscriptions of which the person was given written 3 notice before becoming a member; and 4 (b) any regular subscriptions that may be imposed by any subsequent 5 alteration of the rules and of which the member has been given 6 notice. 7 etc. may be required to deal with cooperative 8 Members 73.(1) The rules of a cooperative may contain provisions that require a 9 member to have stated dealings with the cooperative for a fixed period and 10 to enter into a contract for that purpose. 11 (2) A cooperative may, if authorised by its rules, make a contract with a 12 member containing provisions that require the member to have stated 13 dealings with the cooperative for a fixed period. 14 (3) In particular, the provisions of the rules or a contract may require a 15 member-- 16 (a) to sell products through or to the cooperative; or 17 (b) to obtain supplies or services through or from the cooperative; or 18 (c) to pay to the cooperative a stated amount as liquidated damages 19 for any failure to comply with a requirement authorised by this 20 section. 21 (4) Any amount required to be paid to the cooperative as liquidated 22 damages is, for section 75,15 a debt payable by the member to the 23 cooperative. 24 (5) A contract authorised by this section is binding on the cooperative 25 and all other parties even though, apart from this Act, the contract would be 26 invalid as being in restraint of trade. 27 (6) Rules authorised by this section are authorised even though, apart 28 from this section, the rules might be invalid as being in restraint of trade. 29 15 Section 75 (Charge and set-off of cooperative)

 


 

s 74 64 s 75 Cooperatives payable by members 1 Fines 74.(1) A cooperative may impose a fine on a member for an 2 infringement of the rules of the cooperative if the rules of the cooperative so 3 provide. 4 (2) A fine imposed under subsection (1) must not be more than the 5 maximum fine fixed by the rules under section 101.16 6 (3) A fine must not be imposed unless-- 7 (a) notice of intention to impose the fine and the reason for it has 8 been given to the member; and 9 (b) the member has been given a reasonable opportunity to appear 10 before the board in person (with or without witnesses), or to send 11 to the board a written statement, to show cause why the fine 12 should not be imposed. 13 (4) The cooperative may set off the whole or any part of the fine against 14 an amount payable to the member for produce delivered by the member to 15 the cooperative, but no part of the fine is to be set off against any advance 16 payable to the member from the cooperative under the rules against produce 17 so delivered. 18 and set-off of cooperative 19 Charge 75.(1) A cooperative has, in relation to any debt payable by a member or 20 former member to the cooperative, a charge on each of the following-- 21 (a) the share or interest in the capital and the credit balance and 22 deposits of the member or former member; 23 (b) any rebate, bonus, dividend or interest payable to the member or 24 former member; 25 (c) any entry fees and regular subscriptions required to be repaid to a 26 member when the member ceases to be a member. 27 (2) The cooperative may set off any amount paid on account of that share 28 or other thing, or any amount credited or payable to the member or former 29 member, in or towards payment of the debt. 30 16 Section 101 (Content of rules)

 


 

s 76 65 s 77 Cooperatives (3) The charge created by this section may be enforced by the 1 appropriation by the cooperative of the thing that is subject to the charge, but 2 only after at least 7 days notice has been given to the member or former 3 member. 4 (4) Any share in relation to which capital has been so appropriated must 5 be cancelled. 6 of shares on expulsion 7 Repayment 76.(1) When a member is expelled from a cooperative under its rules, the 8 cooperative must repay to the member the amount paid up on the shares 9 held by the member at the date of expulsion, less any amount owed by the 10 member to the cooperative at the date of expulsion under the rules of the 11 cooperative or any contract or otherwise. 12 (2) If the balance sheet of the cooperative last issued before the expulsion 13 of a member of the cooperative disclosed a loss or deficiency, there must be 14 a proportionate reduction in the capital to be repaid to the member. 15 (3) That reduction must be by an amount that bears to the amount of the 16 loss or deficiency so disclosed in the same proportion as the number of 17 shares held by the member bore to the total number of shares held by all 18 members of the cooperative as at the date of expulsion of the member. 19 (4) Payment of any amount payable to a member under this section must 20 be made at the time decided by the board of the cooperative, but within 21 1 year after the date of expulsion. 22 (5) Shares for which capital has been repaid must be cancelled. 23 Division 3--Death of member 24 of "interest" 25 Meaning 77. In this division-- 26 "interest", of a deceased member in a cooperative, includes-- 27 (a) the member's membership; and 28 (b) any credit balance payable to the member; and 29

 


 

s 78 66 s 79 Cooperatives (c) any loan from or to or deposit with the cooperative; and 1 (d) any surplus arising on the sale by the cooperative as mortgagee of 2 any property mortgaged by the deceased to the cooperative. 3 of share or interest on death of member 4 Transfer 78. Subject to section 167,17 on the death of a member, the board must 5 transfer the deceased member's share or interest in the cooperative to-- 6 (a) the personal representative of the deceased member; or 7 (b) to the person that the deceased's personal representative specifies 8 in an application made to the cooperative within 3 months after 9 the death of the member. 10 of small shareholdings and interests on death 11 Transfer 79.(1) If the total value of a deceased member's shares or interest in a 12 cooperative is less than $10 000 (or a higher amount prescribed under a 13 regulation), the board may, on the basis of evidence that it considers 14 enough, transfer the shares or interest under whichever of the following 15 paragraphs is appropriate-- 16 (a) if the member dies testate--to the person who appears to the 17 board to be entitled to the shares or interest under the will of the 18 deceased member; 19 (b) if the member dies intestate--to any person who appears to the 20 board to be entitled to obtain a grant of administration of the estate 21 of the deceased, and that person must then hold the shares or 22 interest on the same trusts as if he or she had obtained the grant. 23 (2) A transfer must not be made under this section after evidence has 24 been produced to the cooperative of the grant of letters of administration of 25 the estate, or probate of the will, of the deceased member. 26 (3) In this section-- 27 "transfer", of an interest, includes the payment of money. 28 17 Section 167 (Transfer on death of member)

 


 

s 80 67 s 83 Cooperatives of shares and interests 1 Value 80. The value of the shares or interest of a deceased member must be 2 decided, for this division, under the rules of the cooperative. 3 protected 4 Cooperative 81. Any transfer of property made by the board of a cooperative under 5 this division is valid and effectual against any demand made on the 6 cooperative by any other person. 7 4--Disputes involving members 8 Division procedure 9 Grievance 82.(1) The rules of a cooperative must set out a grievance procedure for 10 dealing with any dispute under the rules between-- 11 (a) a member and another member; or 12 (b) a member and the cooperative. 13 (2) A member may appoint any person to act on behalf of the member in 14 the grievance procedure. 15 (3) The grievance procedure must allow for natural justice to be applied. 16 (4) In this division-- 17 "member" includes any person who was a member not more than 18 6 months before the dispute occurred. 19 to Supreme Court 20 Application 83.(1) The Supreme Court may, on the application of a member or the 21 cooperative, make an order declaring and enforcing-- 22 (a) the rights or obligations of members of the cooperative between 23 themselves; or 24 (b) the rights or obligations of the cooperative and any member 25 between themselves. 26

 


 

s 84 68 s 86 Cooperatives (2) An order may be made under this section whether or not a right of a 1 proprietary nature is involved and whether or not the applicant has an 2 interest in the property of the cooperative. 3 (3) The Supreme Court may refuse to make an order on the application 4 or may make an order for costs against a party, whether successful or not, if 5 it considers that-- 6 (a) the issue raised in the application is trivial; or 7 (b) having regard to the importance of the issue, the nature of the 8 cooperative, any other available method of resolving the issue, the 9 costs involved, lapse of time, acquiescence or any other relevant 10 circumstance, it was unreasonable to make the application; or 11 (c) the unreasonable or improper conduct of a party-- 12 (i) has been responsible for the making of the application; or 13 (ii) has added to the cost of the proceeding. 14 Division 5--Oppressive conduct of affairs 15 16 Interpretation 84. In this division, a reference to a member of a cooperative includes, 17 for a cooperative that has a share capital, a reference to a person to whom a 18 share in the cooperative has been transmitted by will or by operation of law. 19 of division 20 Application 85. This division does not apply to anything done under part 6.18 21 may apply for court order 22 Who 86. The following persons may apply to the Supreme Court for an order 23 under this division-- 24 (a) the registrar; 25 18 Part 6 (Active membership)

 


 

s 87 69 s 87 Cooperatives (b) a member who believes the affairs of the cooperative are being 1 conducted in a way that is-- 2 (i) oppressive or unfairly prejudicial to, or unfairly 3 discriminatory against, a member; or 4 (ii) contrary to the interests of the members as a whole; 5 (c) a member who believes an act or omission, or a proposed act or 6 omission, by or on behalf of the cooperative, or a resolution, or a 7 proposed resolution, of members, was or would be-- 8 (i) oppressive or unfairly prejudicial to, or unfairly 9 discriminatory against, a member; or 10 (ii) contrary to the interests of the members as a whole. 11 the Supreme Court may make 12 Orders 87.(1) On application under this division, the Supreme Court may make 13 any order it considers appropriate including (without being limited to) 1 or 14 more of the following orders-- 15 (a) an order that the registrar appoint an administrator of the 16 cooperative; 17 (b) an order that the cooperative be wound-up; 18 (c) an order for regulating the conduct of affairs of the cooperative in 19 the future; 20 (d) an order for the repayment of the member's shares under the 21 provisions of this Act for repayment of share capital; 22 (e) an order for the purchase of the shares of any member by the 23 cooperative and for the reduction accordingly of the cooperative's 24 capital; 25 (f) an order directing the cooperative to institute, prosecute, defend or 26 discontinue a stated proceeding, or authorising a member or 27 members of the cooperative to institute, prosecute, defend or 28 discontinue a stated proceeding in the name and on behalf of the 29 cooperative; 30 (g) an order appointing a receiver or a receiver and manager of 31 property of the cooperative; 32

 


 

s 88 70 s 90 Cooperatives (h) an order restraining a person from engaging in stated conduct or 1 from doing a stated act or thing; 2 (i) an order directing a cooperative to become registered as a 3 company under the Corporations Law; 4 (j) an order requiring a person to do a stated act or thing; 5 (k) an order as to costs. 6 on which Supreme Court makes orders 7 Basis 88. The Supreme Court may make an order under this division if it 8 considers that-- 9 (a) the affairs of a cooperative are being conducted in a way that is-- 10 (i) oppressive or unfairly prejudicial to, or unfairly 11 discriminatory against, a member (the "oppressed 12 member"), whether or not in the capacity of a member; or 13 (ii) contrary to the interests of the members as a whole; or 14 (b) an act or omission, or a proposed act or omission, by or on behalf 15 of a cooperative, or a resolution, or a proposed resolution, of 16 members, was or would be-- 17 (i) oppressive or unfairly prejudicial to, or unfairly 18 discriminatory against, a member (the "oppressed 19 member"), whether or not in the capacity of a member; or 20 (ii) contrary to the interests of the members as a whole. 21 need not be ordered if oppressed members prejudiced 22 Winding-up 89. The Supreme Court need not make an order under this division for 23 the winding-up of a cooperative if it considers the winding-up of the 24 cooperative would unfairly prejudice an oppressed member. 25 of winding-up provisions 26 Application 90. If an order that a cooperative be wound-up is made under this 27 division, the provisions of this Act relating to the winding-up of 28

 


 

s 91 71 s 93 Cooperatives cooperatives apply, with any changes that are necessary, as if the order had 1 been made on an application filed in the Supreme Court by the cooperative. 2 to rules 3 Changes 91. If an order under this division makes any alteration to the rules of a 4 cooperative-- 5 (a) the alteration has effect as if it had been properly made by special 6 resolution of the cooperative; and 7 (b) the cooperative must not (despite any other provisions of this 8 Act), without the leave of the Supreme Court, make any further 9 alteration to the rules inconsistent with the provisions of the order. 10 of order to be filed with registrar 11 Copy 92. An applicant for an order under this division must file an office copy 12 of the order with the registrar within 14 days after it is made. 13 Maximum penalty--10 penalty units. 14 6--Proceedings on behalf of a cooperative by members and 15 Division others 16 or intervening in, proceedings on behalf of a cooperative 17 Bringing, 93.(1) A person may bring a proceeding on behalf of a cooperative, or 18 intervene in a proceeding to which a cooperative is a party for the purpose 19 of taking responsibility on behalf of the cooperative for that proceeding, or a 20 particular step in that proceeding, (for example, compromising or settling 21 it), if-- 22 (a) the person is-- 23 (i) a member, former member, or person entitled to be 24 registered as a member, of the cooperative or of a related 25 corporation; or 26 (ii) an officer or former officer of the cooperative; or 27 (iii) the registrar; and 28

 


 

s 94 72 s 95 Cooperatives (b) the person is acting with leave granted under section 94. 1 (2) A proceeding brought on behalf of a cooperative may be brought in 2 the cooperative's name. 3 for and granting leave 4 Applying 94.(1) A person mentioned in section 93(1)(a) may apply to the Supreme 5 Court for leave to bring, or to intervene in, a proceeding. 6 (2) The Supreme Court may grant the application if it is satisfied that-- 7 (a) it is probable the cooperative will not itself bring the proceeding, 8 or properly take responsibility for it, or for the step in it; and 9 (b) the applicant is acting in good faith; and 10 (c) it is in the best interests of the cooperative that the applicant be 11 granted leave; and 12 (d) if the applicant is applying for leave to bring a proceeding--there 13 is a serious question to be tried; and 14 (e) either-- 15 (i) at least 14 days before making the application, the applicant 16 gave written notice to the cooperative of the intention to 17 apply for leave and the reasons for applying; or 18 (ii) it is appropriate to grant leave even if subparagraph (i) is not 19 satisfied. 20 of another person for the person granted leave 21 Substitution 95.(1) Any of the following persons may apply to the Supreme Court for 22 an order that the person be substituted for a person to whom leave has been 23 granted under section 94-- 24 (a) a member, former member, or person entitled to be registered as 25 a member, of the cooperative or a related corporation; 26 (b) an officer, or former officer, of the cooperative; 27 (c) the registrar. 28 (2) The application may be made whether or not the other person has 29

 


 

s 96 73 s 96 Cooperatives already brought the proceeding or made the intervention. 1 (3) The Supreme Court may make the order if it is satisfied that-- 2 (a) the applicant is acting in good faith; and 3 (b) in all the circumstances, it is appropriate to make the order. 4 (4) An order substituting 1 person for another person has the effect 5 that-- 6 (a) the grant of leave is taken to have been made in favour of the 7 substituted person; and 8 (b) if the other person has already brought the proceeding or 9 intervened--the substituted person is taken to have brought that 10 proceeding or to have made that intervention. 11 of ratification by members 12 Effect 96.(1) A ratification or approval of conduct by members of a 13 cooperative-- 14 (a) does not prevent a person from bringing or intervening in a 15 proceeding with leave under section 9419 or from applying for 16 leave under that section; and 17 (b) does not have the effect that a proceeding brought or intervened in 18 with leave under section 94 must be decided in favour of the 19 defendant, or that an application for leave under that section must 20 be refused. 21 (2) The Supreme Court may take into account a ratification or an 22 approval of the conduct by members of a cooperative in deciding what 23 order or judgment (including as to damages) to make in a proceeding 24 brought or intervened in with leave under section 94 or in relation to an 25 application for leave under that section. 26 (3) In taking a ratification or approval into account under subsection (2), 27 the Supreme Court may have regard to-- 28 (a) how well informed about the conduct the members were when 29 deciding whether to ratify or approve the conduct; and 30 19 Section 94 (Applying for and granting leave)

 


 

s 97 74 s 99 Cooperatives (b) whether the members who ratified or approved the conduct were 1 acting for proper purposes. 2 to discontinue, compromise or settle proceedings brought, or 3 Leave intervened in, with leave 4 97. A proceeding brought or intervened in with leave must not be 5 discontinued, compromised or settled without the leave of the Supreme 6 Court. 7 powers of the Supreme Court 8 General 98.(1) The Supreme Court may make any order, and give any direction, 9 it thinks just in relation to a proceeding brought or intervened in with leave, 10 or in relation to an application for leave, including-- 11 (a) interim orders; and 12 (b) directions about the conduct of the proceeding, including 13 requiring mediation; and 14 (c) an order directing the cooperative, or an officer of the cooperative, 15 to do, or not to do, any act; and 16 (d) an order appointing an independent person to investigate, and 17 report to the court, on-- 18 (i) the financial affairs of the cooperative; or 19 (ii) the facts or circumstances that gave rise to that cause of 20 action the subject of the proceeding; or 21 (iii) the costs incurred in the proceeding and the person granted 22 leave. 23 (2) A person appointed by the Supreme Court under subsection (1)(d) is 24 entitled, on giving reasonable notice to the cooperative, to inspect and make 25 copies of any records of the cooperative for any purpose connected with the 26 person's appointment. 27 of Supreme Court to make costs order 28 Power 99. At any time, the Supreme Court may, in relation to a proceeding 29

 


 

s 100 75 s 101 Cooperatives brought or intervened in with leave under section 9420 or an application for 1 leave under that section, make any order it thinks just about the costs of the 2 person who applied for or was granted leave, the cooperative or any other 3 party to the proceeding or application, including an order requiring 4 indemnification for costs. 5 ART 5--RULES 6 P of rules 7 Effect 100.(1) The rules of a cooperative have the effect of a contract under 8 seal-- 9 (a) between the cooperative and each member; and 10 (b) between the cooperative and each director, the principal executive 11 officer and the secretary of the cooperative; and 12 (c) between a member and each other member. 13 (2) Under the contract, each of those persons agrees to observe and 14 perform the provisions of the rules as in force for the time being so far as 15 those provisions apply to the person. 16 of rules 17 Content 101.(1) The rules of a cooperative must state or otherwise make 18 provision for the matters included in schedule 1.21 19 (2) The rules must be divided into paragraphs numbered consecutively. 20 (3) The rules may state the objects of the cooperative. 21 (4) The rules may incorporate any provision of the model rules approved 22 under section 104.22 23 20 Section 94 (Applying for and granting leave) 21 Schedule 1 (Matters for which rules must make provision) 22 Section 104 (Model rules)

 


 

s 102 76 s 104 Cooperatives (5) The rules may provide for the imposition of a fine on a member for 1 an infringement of the rules. 2 (6) If the rules provide for the imposition of a fine, the rules must state 3 the maximum fine that may be imposed on a member. 4 (7) The maximum fine fixed by the rules must not be more than any 5 amount prescribed under a regulation as the maximum fine. 6 (8) The rules may contain other provisions not inconsistent with this Act. 7 and inspection of copy of rules 8 Purchase 102.(1) Any member is entitled to obtain from a cooperative a copy of its 9 rules on payment of the amount required by the rules of the cooperative or, 10 if the rules do not prescribe an amount, on payment of $5. 11 (2) The amount required by the rules must not be more than the fee 12 prescribed under a regulation for obtaining a copy of the rules from the 13 registrar. 14 (3) Any person is entitled to obtain from the registrar a copy of the rules 15 of a cooperative on payment of the fee prescribed under a regulation. 16 copies of rules 17 False 103.(1) A person must not give to a member of a cooperative or to a 18 person intending or applying to become a member of a cooperative a copy 19 of any rules or any alterations of rules, other than those that have been 20 registered, representing that they are binding on the members of the 21 cooperative. 22 Maximum penalty--10 penalty units. 23 (2) A person must not alter any of the rules of a cooperative after they 24 have been registered and circulate the altered rules representing that they 25 have been registered when they have not been. 26 Maximum penalty--10 penalty units. 27 rules 28 Model 104.(1) A regulation may approve model rules for cooperatives. 29

 


 

s 105 77 s 106 Cooperatives (2) The model rules may make provision for anything for which the 1 rules of a cooperative may make provision. 2 (3) If the model rules provide for a matter and the rules of a cooperative 3 of the class to which the model rules apply do not provide for that matter, 4 the provision of the model rules relating to that matter is taken to be 5 included in the rules of the cooperative. 6 can only be altered under this Act 7 Rules 105. The rules of a cooperative can not be altered except under this Act. 8 of alteration of rules 9 Approval 106.(1) A proposed alteration of the rules must be approved by the 10 registrar before the resolution altering the rules is passed by a cooperative or 11 the board of a cooperative. 12 (2) A draft of the proposed alteration must be submitted to the registrar at 13 least 28 days (or the shorter period the registrar may allow in a particular 14 case) before-- 15 (a) the notice of the proposed special resolution altering the rules is 16 given to the members by the cooperative; or 17 (b) the resolution is passed by the board of the cooperative. 18 (3) The proposed alteration must-- 19 (a) be in accordance with section 101;23 and 20 (b) be in a form that may reasonably be approved; and 21 (c) be accompanied by a statement stating the reasons for the 22 alteration. 23 (4) The registrar may-- 24 (a) approve the alteration as submitted; or 25 (b) approve a different alteration to that submitted; or 26 (c) refuse to approve the alteration. 27 23 Section 101 (Content of rules)

 


 

s 107 78 s 109 Cooperatives (5) The registrar approves of the alteration by giving written notice of the 1 approval of the alteration to the person who submitted the alteration to the 2 registrar. 3 (6) The registrar must give written notice of the refusal to approve the 4 alteration and the reasons for the refusal to the person who submitted the 5 alteration to the registrar. 6 by special resolution 7 Alteration 107. The rules of a cooperative must be altered by special resolution 8 unless this Act otherwise provides. 9 by resolution of board 10 Alteration 108.(1) The rules of a cooperative may be altered by a resolution passed 11 by the board if the alteration does no more than give effect to a requirement, 12 restriction or prohibition imposed under the authority of this Act. 13 (2) If the rules of a cooperative are altered under this section, the 14 cooperative must cause the alteration to be notified in writing to its 15 members as soon as practicable after the alteration takes effect and in any 16 event not later than the day when notice of the next annual general meeting 17 of the cooperative after the alteration takes effect is given to the members. 18 does not take effect until registered 19 Alteration 109.(1) An alteration of the rules of a cooperative does not take effect 20 unless and until it is registered by the registrar. 21 (2) An application for registration of an alteration must-- 22 (a) be made in the approved form; and 23 (b) be made within 28 days, or a shorter or longer time prescribed 24 under a regulation, after the alteration is made; and 25 (c) be accompanied by a consolidated copy of the rules of the 26 cooperative, including the alteration. 27 (3) The registrar must register the alteration unless-- 28 (a) the registrar is satisfied the alteration is contrary to this Act; or 29

 


 

s 110 79 s 114 Cooperatives (b) the registrar has other reasonable cause to refuse to register the 1 alteration. 2 (4) A certificate of registration of an alteration of the rules of a 3 cooperative given by the registrar is, in favour of any person advancing 4 money to the cooperative on the faith of the certificate or a guarantor of that 5 advance, evidence that the alteration in the rules was properly made. 6 against refusal to approve alteration 7 Appeal 110. A cooperative may appeal to the Supreme Court against a failure of 8 the registrar to approve an alteration of its rules. 9 against refusal to register alteration 10 Appeal 111. A cooperative may appeal to the Supreme Court against a failure of 11 the registrar to register an alteration of its rules. 12 Court's powers on appeal 13 Supreme 112. The Supreme Court may make any order it considers appropriate to 14 dispose of an appeal under section 110 or 111. 15 PART 6--ACTIVE MEMBERSHIP 16 Division 1--Definitions 17 of "primary activity" 18 Meaning 113. A "primary activity" of a cooperative is an activity specified in the 19 rules of the cooperative as a primary activity of the cooperative. 20 is active membership 21 What 114. For this Act, a member of a cooperative is an active member of the 22

 


 

s 115 80 s 117 Cooperatives cooperative if the member-- 1 (a) uses or supports an activity of, or maintains a relationship or an 2 arrangement with, the cooperative, for carrying on a primary 3 activity of the cooperative, in the way and to the extent the rules of 4 the cooperative provide; or 5 (b) maintains any other relationship or arrangement with the 6 cooperative for carrying on a primary activity of the cooperative 7 that a regulation provides. 8 are active membership provisions and resolutions 9 What 115.(1) Active membership provisions in the rules of a cooperative are 10 provisions in the rules that state-- 11 (a) which of the activities of the cooperative are the primary activities 12 of the cooperative; and 13 (b) the way in which and the extent to which a member of the 14 cooperative must use or support an activity of, or maintain a 15 relationship or arrangement with, the cooperative, for carrying on 16 a primary activity of the cooperative, to establish active 17 membership of the cooperative. 18 (2) An active membership resolution is a resolution that would, if given 19 effect to, make or amend active membership provisions in the rules of a 20 cooperative. 21 Division 2--Rules to contain active membership provisions 22 of primary activities required 23 Number 116. A cooperative must have at least 1 primary activity. 24 to contain active membership provisions 25 Rules 117. The board of a cooperative must ensure the rules of the cooperative 26 contain active membership provisions under this part. 27

 


 

s 118 81 s 119 Cooperatives and considerations for deciding primary activities etc. 1 Factors 118.(1) The board of a cooperative must ensure the relevant factors and 2 considerations are taken into account in deciding-- 3 (a) which of the activities of a cooperative are its primary activities; 4 and 5 (b) the way and extent to which a member is required to use or 6 support an activity of, or maintain a relationship or arrangement 7 with, a cooperative, for carrying on a primary activity of the 8 cooperative, to establish active membership of the cooperative. 9 (2) The relevant factors and considerations are-- 10 (a) the primary activity or (if more than 1) the primary activities 11 taken together must form the basic purpose for which the 12 cooperative exists and a significant contribution to the business of 13 the cooperative; and 14 (b) the way and extent of required utilisation, support, relationship or 15 arrangement should be reasonable when considered in relation to 16 the activities of the cooperative as a whole; and 17 (c) any other factors and considerations prescribed under a 18 regulation. 19 (3) A regulation may-- 20 (a) provide for the things to be taken into account in deciding whether 21 an activity makes a significant contribution to the business of the 22 cooperative; and 23 (b) state minimum percentages of turnover, minimum amounts of 24 income or minimum amounts of business necessary to constitute 25 that significant contribution. 26 (4) Nothing in this section limits the right of active members other than 27 the board of the cooperative to propose an active membership resolution. 28 membership provisions--trading cooperatives 29 Active 119. The only active membership provisions that may be contained in the 30 rules of a trading cooperative are-- 31 (a) provisions requiring a member to use an activity of the 32

 


 

s 120 82 s 121 Cooperatives cooperative for carrying on of a primary activity stated in the 1 provisions to establish active membership; and 2 (b) any other active membership provisions the registrar may 3 approve. 4 subscription--active membership of non-trading cooperative 5 Regular 120.(1) Active membership provisions for a non-trading cooperative 6 may include provision that the payment of a regular subscription by a 7 member of the cooperative, to be applied to a primary activity of the 8 cooperative, is enough to establish active membership of the cooperative. 9 (2) A member of a cooperative who would, on payment of the 10 subscription, be an active member of a cooperative is taken to be an active 11 member until the subscription is payable. 12 3--Active membership resolutions 13 Division of meeting 14 Notice 121.(1) At least 21 days notice must be given to members of a 15 cooperative of a meeting at which an active membership resolution is to be 16 proposed. 17 (2) The notice must, in addition to the other matters required to be 18 stated-- 19 (a) state whether the member is eligible to vote on the resolution; and 20 (b) state the full text of the proposed resolution; and 21 (c) contain a copy of section 125.24 22 (3) If the notice to a member states that he or she is not eligible to vote on 23 a resolution, the member may, after endeavouring to settle the matter with 24 the cooperative, apply to the registrar for a decision as to the member's 25 eligibility. 26 (4) The registrar may decide the matter, on the information available to 27 24 Section 125 (Cancellation of membership of inactive member)

 


 

s 122 83 s 125 Cooperatives the registrar, by direction in writing to the cooperative and the member. 1 (5) The registrar's decision as to eligibility has effect but only if given 2 before the meeting concerned is due to be held. 3 to vote on active membership resolution 4 Eligibility 122. The only members of a cooperative who are eligible to vote on an 5 active membership resolution when the rules do not contain active 6 membership provisions are the members who would be active members if 7 the resolution had already taken effect. 8 of directors to vote on proposal at board meeting 9 Eligibility 123. If the board of a cooperative is meeting to consider a proposal to 10 submit an active membership resolution to a meeting of the cooperative-- 11 (a) subject to paragraph (b), a director is only eligible to vote on the 12 proposal if he or she would be eligible to vote on the resolution at 13 the meeting of the cooperative; or 14 (b) if less than 2 directors (whether or not they are present at the 15 meeting of the board of directors) would be eligible to vote on the 16 resolution at the meeting of the cooperative--all the directors are 17 eligible to vote on the proposal at the meeting of the board of 18 directors. 19 entitlements of members not affected 20 Other 124. A provision of this division that renders a member of a cooperative 21 ineligible to vote on a resolution does not affect any other right, entitlement, 22 obligation or duty of the member as a member. 23 4--Cancellation of membership of inactive members 24 Division of membership of inactive member 25 Cancellation 125.(1) The board of a cooperative must declare the membership of a 26 member cancelled if-- 27

 


 

s 126 84 s 126 Cooperatives (a) the whereabouts of the member are not presently known to the 1 cooperative and have not been known to the cooperative for at 2 least the required period before that time; or 3 (b) the member is not presently an active member of the cooperative 4 and has not been an active member of the cooperative at any time 5 during the required period immediately before that time. 6 (2) This section applies to a member only if he or she was a member of 7 the cooperative throughout the required period. 8 (3) The question of whether a member was an active member at a 9 particular time in the past is to be decided as if the active membership 10 provisions concerned had been in force at that time. 11 (4) The board's declaration under this section has the effect of cancelling 12 the membership concerned. 13 (5) A person may apply to the Supreme Court for an order under 14 section 13125 in relation to the cancellation of the person's membership 15 under this section. 16 (6) In this section-- 17 "the required period", in relation to a cooperative, means-- 18 (a) 3 years; or 19 (b) if a shorter period is stated in the rules of the cooperative--that 20 period. 21 to be forfeited if membership cancelled 22 Share 126.(1) If a cooperative has a share capital, the board of the cooperative 23 must declare the shares of a member to be forfeited at the same time as the 24 member's membership is cancelled under section 125. 25 (2) The board's declaration has the effect of forfeiting the shares 26 concerned. 27 (3) Nothing in this section affects the operation of section 132.26 28 25 Section 131 (Order of Supreme Court against cancellation) 26 Section 132 (Repayment of amounts owing because of cancelled membership)

 


 

s 127 85 s 129 Cooperatives to cancel membership--offence by director 1 Failure 127. If the board of a cooperative fails to cancel the membership of a 2 member as required by this part, a director of the cooperative who did not 3 use all proper diligence to prevent the failure commits an offence. 4 Maximum penalty--20 penalty units. 5 of forfeiture by board 6 Deferral 128.(1) The board of a cooperative may by resolution defer cancellation 7 of a member's membership for up to 1 year-- 8 (a) if the board has reasonable grounds to believe a member has 9 ceased to be an active member because of unusual circumstances 10 that prevent the member fulfilling his or her active membership 11 obligations; or 12 (b) if-- 13 (i) the board thinks that during the deferral period an active 14 membership resolution may be put to the members of the 15 cooperative; and 16 (ii) the effect of the resolution would be relevant to the question 17 of whether the member is an active member. 18 (2) The board of the cooperative must review the resolution to defer 19 within the deferral period to decide if a further resolution should be made 20 under subsection (1). 21 of membership prohibited in certain circumstances 22 Cancellation 129. Unless a regulation otherwise provides, the board of a cooperative 23 must not declare the membership of a member to be cancelled under this 24 part-- 25 (a) if the cooperative is insolvent; or 26 (b) if the cooperative is under administration under the Corporations 27 Law, part 5.3A as adopted and applying under this Act; or 28 (c) if a compromise or an arrangement is being administered in 29 relation to the cooperative; or 30

 


 

s 130 86 s 131 Cooperatives (d) if the cooperative is in the course of being wound-up; or 1 (e) if an appointment of a receiver (whether or not a receiver and 2 manager) of any property of the cooperative is in force; or 3 (f) if the cooperative has, for the purpose of being registered as a 4 company under the Corporations Law, filed with the registrar a 5 copy of the entry made in the minute book of the cooperative 6 under section 193;27 or 7 (g) in other circumstances that may be prescribed under a regulation. 8 of intention to cancel membership 9 Notice 130.(1) The board of a cooperative must ensure that not less than 28 days 10 notice of its intention to declare the membership of a member to be 11 cancelled is given to the member. 12 (2) Notice is not required to be given under this section if-- 13 (a) the member's whereabouts are unknown to the cooperative; and 14 (b) the amount required to be repaid to the member in relation to the 15 cancelled membership (whether because of the cancellation of 16 shares or otherwise) is not more than $50. 17 of Supreme Court against cancellation 18 Order 131.(1) If the Supreme Court is satisfied the cancellation of a member's 19 membership under section 12528 was or would be unreasonable, the court 20 may by order direct that the membership should not have been cancelled or 21 should not be cancelled. 22 (2) While an order is in force under this section-- 23 (a) the membership concerned is not required to be cancelled and any 24 shareholding of the member is not required to be forfeited; and 25 (b) the person whose membership was cancelled is entitled to be 26 reinstated as a member of the cooperative with all the rights and 27 27 Section 193 (Postal ballots) 28 Section 125 (Cancellation of membership of inactive member)

 


 

s 132 87 s 132 Cooperatives entitlements (including any shareholding) attaching to or arising 1 from the former membership. 2 (3) Reinstatement of a member under this section is to be effected under 3 the directions of the Supreme Court. 4 of amounts owing because of cancelled membership 5 Repayment 132.(1) If the membership of a member of a cooperative is cancelled 6 under this part, the cooperative must, within 1 year after the date of 7 cancellation-- 8 (a) repay to the former member the amount owing to the member 9 because of the cancellation; or 10 (b) apply the amount under subsection (2) if-- 11 (i) the board considers repayment would adversely affect the 12 financial position of the cooperative; or 13 (ii) the board and the former member so agree. 14 (2) The amount payable may be applied as follows-- 15 (a) if the cooperative is a deposit-taking cooperative--the cooperative 16 may apply the amount as a deposit by the former member with 17 the cooperative (subject to the requirements of section 133 as to 18 interest on the deposit); 19 (b) the cooperative may allot or issue debentures of the cooperative to 20 the former member in satisfaction of the amount; 21 (c) the cooperative may appropriate the amount as a donation to the 22 cooperative, but only if the former member consents in writing to 23 the donation. 24 (3) The amount payable to a former member because of the cancellation 25 of membership includes any amount paid up for shares forfeited because of 26 the cancellation of membership. 27 (4) If the former member is subsequently readmitted to membership, 28 any amount held by the cooperative under this section must, if the member 29 asks, be applied towards the cost of admission to membership (including 30 any subscription for share capital). 31

 


 

s 133 88 s 134 Cooperatives on deposits and debentures 1 Interest 133.(1) This section applies when the amount payable to a former 2 member under section 132 is applied as a deposit with the cooperative or 3 the cooperative allots or issues debentures to the former member in 4 satisfaction of the amount. 5 (2) The deposit or debenture bears interest during any period-- 6 (a) for a cooperative with share capital-- 7 (i) at the rate (or, if there is more than 1 rate, at the higher or 8 highest rate) of dividend payable for that period on the share 9 capital of the cooperative; or 10 (ii) if the rate of dividend payable for that period has not been 11 decided--at the rate (or the higher or highest rate) payable 12 for the immediately preceding period for which a rate has 13 been decided; or 14 (iii) if a rate of dividend has never been decided for the share 15 capital of the cooperative--at the rate the board of the 16 cooperative considers reasonable; or 17 (b) for a cooperative without share capital--at the rate the board of 18 the cooperative considers reasonable; or 19 (c) if the rules provide for a rate to be payable that is higher than the 20 rate applicable under paragraph (a) or (b)--at the higher rate. 21 (3) A former member may agree to the rate of interest being less than 22 that which would otherwise be payable under this section and may agree to 23 no interest being paid. 24 (4) The provisions of the Corporations Law, part 7.12 adopted under 25 section 25629 do not apply to an allotment or issue of debentures under this 26 section. 27 of deposits and debentures 28 Repayment 134.(1) A deposit or debenture to which an amount payable to a former 29 member is transferred under this division is to be repaid to the former 30 29 Section 256 (Notification of change in nature of shareholding)

 


 

s 135 89 s 137 Cooperatives member as soon as repayment would not, in the opinion of the board, 1 adversely affect the financial position of the cooperative. 2 (2) The deposit or debenture must in any case be repaid within 10 years 3 (or within any shorter period the rules of the cooperative may require) after 4 cancellation of the member's membership. 5 of cancelled memberships 6 Register 135. A cooperative must keep a register in the approved form stating the 7 particulars prescribed under a regulation of persons whose membership has 8 been cancelled under this part. 9 Division 5--Entitlements of former members of trading cooperatives 10 of division 11 Application 136. This division only applies to trading cooperatives. 12 shareholders to be taken to be shareholders for certain 13 Former purposes 14 137.(1) Even though a person's shares in a cooperative have been 15 forfeited under this part, the person is to be taken to be the holder of shares 16 in the cooperative (the same in all respects as those that were forfeited) for 17 the following purposes-- 18 (a) the entitlement of a shareholder in relation to the purchase of 19 shares in the cooperative under an offer described in 20 section 283(1)(a), (b) or (c)30 or the purchase of all the shares in 21 the cooperative, if the offer or purchase occurs within 5 years 22 after the person's shares were forfeited; 23 (b) the entitlement of a shareholder when the cooperative becomes 24 registered as a company if the relevant special resolution under 25 section 301 31 is passed within 5 years after the person's shares 26 30 Section 283 (Share offers to which division applies) 31 Section 301 (Requirements before application can be made)

 


 

s 138 90 s 138 Cooperatives were forfeited; 1 (c) the entitlement of a shareholder to a distribution of surplus in a 2 winding-up of the cooperative that starts within 5 years after the 3 person's shares were forfeited. 4 (2) Subsection (1)(a) does not apply to-- 5 (a) an offer described in section 283(1)(a) or (c) that is made by 6 another cooperative; or 7 (b) the purchase of all the shares in the cooperative by another 8 cooperative. 9 (3) Subsection (1)(c) does not apply if the winding-up is for a merger 10 under part 12, division 1.32 11 (4) To remove doubt, it is declared that the entitlement under 12 subsection (1)(a) of a person whose shares have been forfeited does not 13 include an entitlement to vote on any matter. 14 (5) This section does not apply to a forfeited shareholding in a 15 cooperative if section 138 operates to require the forfeited shareholding to 16 be regarded as a forfeited shareholding in another cooperative. 17 of former shareholders on mergers etc. 18 Entitlements 138.(1) This section applies when a person's shares in a cooperative (the 19 "original cooperative") are forfeited under this part and within 5 years 20 after the forfeiture-- 21 (a) the original cooperative becomes a subsidiary of another 22 cooperative (the "new cooperative"); or 23 (b) another cooperative (the "new cooperative") is created because 24 of a merger under part 12, division 1 33 involving the original 25 cooperative; or 26 (c) the engagements of the original cooperative are transferred to 27 another cooperative (the "new cooperative") under part 12, 28 division 1. 29 32 Part 12, division 1 (Mergers and transfers of engagements) 33 Part 12, division 1 (Mergers and transfers of engagements)

 


 

s 139 91 s 139 Cooperatives (2) A person mentioned in subsection (1) is, for section 137 (and the 1 further operation of this section), taken to have held shares in the new 2 cooperative and as having had those shares in the new cooperative forfeited 3 under this part when the person's shares in the original cooperative were 4 forfeited. 5 (3) The extent of the forfeited shareholding in the new cooperative is 6 decided as follows-- 7 (a) if the entitlement of active members of the original cooperative in 8 the circumstances concerned is solely an entitlement to be allotted 9 shares in the new cooperative--the forfeited shareholding in the 10 new cooperative is the shareholding to which the person would 11 have been entitled had the person's shares in the original 12 cooperative not been forfeited; 13 (b) in any other case--the forfeited shareholding in the new 14 cooperative is the shareholding that is the same in all respects as 15 the forfeited shareholding in the original cooperative. 16 (4) The decision under subsection (3)(a) of the person's shareholding in 17 the new cooperative must be made-- 18 (a) solely on the basis of the person's shareholding in the original 19 cooperative when the shares were forfeited or (in a further 20 operation of this section to the person) when the person was first 21 taken to have a forfeited shareholding in the original cooperative; 22 and 23 (b) without regard to any additional shareholding in the original 24 cooperative to which the person would have become entitled had 25 the shares not been forfeited (whether because of any bonus share 26 issue or otherwise). 27 of amounts repaid etc. on forfeited shares 28 Set-off 139.(1) If a person has an entitlement because of section 138, the 29 entitlement operates to end any liability of the cooperative-- 30 (a) to repay to the person under section 13234 any amount for the 31 34 Section 132 (Repayment of amounts owing because of cancelled membership)

 


 

s 140 92 s 140 Cooperatives forfeited shares concerned; or 1 (b) for a deposit held by the cooperative, or debentures allotted or 2 issued to the person, under section 132 for the forfeited shares 3 concerned (except a liability to pay interest that is payable but 4 unpaid). 5 (2) If an amount has been repaid to a person under section 132 or 134,35 6 the amount repaid is to be set off against any entitlement of the person 7 under section 13736 for the forfeited shares concerned. 8 (3) If the amount repaid can not be set off against the entitlement because 9 the entitlement is not, or is only partly, an entitlement to money, the 10 entitlement is lost unless the person pays to the cooperative the amount 11 repaid to the person and does so within the period required under 12 subsection (4). 13 (4) If the circumstances mentioned in subsection (3) arise, the 14 cooperative concerned must-- 15 (a) give written notice of the matter by post to the person concerned 16 at the person's address last known to the cooperative, stating a 17 period of not less than 28 days after the notice is given within 18 which any amount repaid must be paid to the cooperative; and 19 (b) publish a general notice to that effect in a newspaper circulating 20 generally in the district in which the registered office of the 21 cooperative is situated. 22 to distribution from reserves 23 Entitlement 140. A person whose membership of a cooperative has been cancelled 24 under this part is taken to still be a member for any distribution from 25 reserves of the cooperative that takes place within 5 years after the person's 26 membership was cancelled. 27 35 Section 134 (Repayment of deposits and debentures) 36 Section 137 (Former shareholders to be taken to be shareholders for certain purposes)

 


 

s 141 93 s 143 Cooperatives may exempt cooperatives from provisions 1 Regulation 141. A regulation may exempt a cooperative from a provision of this 2 division. 3 PART 7--SHARES 4 Division 1--Nature of share 5 of share in cooperative 6 Nature 142.(1) A share or other interest in a cooperative-- 7 (a) is personal property; and 8 (b) is transferable or transmissible as provided by this Act and the 9 rules of the cooperative; and 10 (c) is, subject to the rules of the cooperative, capable of devolution by 11 will or by operation of law. 12 (2) Subject to subsection (1)-- 13 (a) the laws applying to ownership of and dealing with personal 14 property apply to a share or other interest of a member in a 15 cooperative as they apply to other property; and 16 (b) equitable interests in a share or other interest of a member in a 17 cooperative may be created, dealt with and enforced as in the case 18 of other personal property. 19 Division 2--Disclosure 20 to members 21 Disclosure 143.(1) In addition to any information required under part 437 to be 22 37 Part 4 (Membership)

 


 

s 144 94 s 145 Cooperatives provided, the board of a trading cooperative must give a member of the 1 cooperative a disclosure statement before shares are issued to the member. 2 (2) The disclosure statement must contain-- 3 (a) a statement of the rights and liabilities attaching to shares; and 4 (b) a copy of the last annual report of the cooperative under 5 section 242;38 and 6 (c) any other relevant information about the financial position and 7 prospects of the cooperative if there has been a significant change 8 since the date of the last annual report; and 9 (d) any other information the registrar directs. 10 3--Issue of shares 11 Division 12 Shares--general 144.(1) The share capital of a cooperative varies in amount according to 13 the nominal value of shares from time to time subscribed. 14 (2) Shares are to be of a fixed amount that must be specified in the rules 15 of the cooperative. 16 (3) A cooperative may have more than 1 class of shares if the 17 shareholding and the rights of shareholders comply with the cooperative 18 principles. 19 (4) Subject to this part and part 4,39 shares must not be issued to a 20 non-member. 21 inimum paid up amount 22 M 145.(1) A share must not be allotted unless at least 10% of the nominal 23 value of the share has been paid. 24 (2) Any balance unpaid for shares at the time of allotment must be paid 25 38 Section 242 (Annual report) 39 Part 4 (Membership)

 


 

s 146 95 s 147 Cooperatives in a way specified in the rules or permitted by this Act. 1 (3) This section does not apply to a bonus share issued under section 150 2 or 266.40 3 not to be issued at a discount 4 Shares 146. A cooperative must not issue shares at a discount. 5 of shares at a premium 6 Issue 147.(1) A trading cooperative may issue shares at a premium. 7 (2) A premium may be in the form of cash or other valuable 8 consideration. 9 (3) If a trading cooperative issues shares for which it receives a 10 premium, an amount equal to the total amount or value of the premiums on 11 the shares must be transferred to a share premium account. 12 (4) The share premium account is to be treated as paid-up share capital of 13 the trading cooperative and may be applied in 1 or more of the following 14 ways-- 15 (a) in paying up unissued shares to be issued to members of the 16 cooperative as fully paid bonus shares; 17 (b) in paying up, in whole or in part, the balance unpaid on shares 18 previously issued to members of the cooperative; 19 (c) in the payment of dividends, if the dividends are satisfied by the 20 issue of shares to members of the cooperative; 21 (d) in writing off the preliminary expenses of the cooperative; 22 (e) in providing for the premium payable on redemption of shares or 23 debentures. 24 40 Section 150 (Bonus share issues) or 266 (Distribution of surplus or reserves to members)

 


 

s 148 96 s 149 Cooperatives ownership of shares 1 Joint 148. A share may be held by 2 or more persons jointly, unless the rules 2 of the cooperative otherwise provide. 3 may be required to take up additional shares 4 Members 149.(1) If authorised by the rules of the cooperative, the board of a 5 trading cooperative may require a member to take up or subscribe for 6 additional shares under a proposal approved by a special resolution of the 7 cooperative. 8 (2) The board of a trading cooperative may deduct amounts in payment 9 for additional shares from money payable to members for dealings with the 10 cooperative, under a proposal approved by a special resolution of the 11 cooperative. 12 (3) A proposal to require a member to take up or subscribe for additional 13 shares must-- 14 (a) be accompanied by a disclosure statement, approved by the 15 registrar, that explains the purpose for which the funds raised by 16 the issue of the additional shares are to be used; and 17 (b) clearly show the total number of additional shares to be issued 18 and the basis on which the shares are to be apportioned among 19 members; and 20 (c) be accompanied by a statement informing the member that the 21 member may inform the board by notice on or before the date 22 stated in the statement (being a date before the passing of the 23 special resolution) that the member resigns on the passing of the 24 special resolution. 25 (4) A proposal to deduct amounts in payment for additional shares from 26 amounts payable to members for their dealings with the trading cooperative 27 must clearly show-- 28 (a) the basis on which the deductions are to be made; and 29 (b) the time and way of making those deductions. 30 (5) A proposal approved under this section is binding on-- 31 (a) all members of the trading cooperative at the date of the passing 32

 


 

s 150 97 s 151 Cooperatives of the special resolution, other than a member who has given a 1 notice of resignation under subsection (3)(c); and 2 (b) all persons who become members of the trading cooperative after 3 that date and before the total number of shares to be issued under 4 the proposal has been issued. 5 (6) Sections 17 (except subsection (2)) and 29 41 apply to the approval of 6 a disclosure statement under this section with any necessary changes and, in 7 particular, as if a reference in section 17 to a formation meeting were a 8 reference to the special resolution. 9 share issues 10 Bonus 150.(1) In addition to section 266, 42 the rules of a trading cooperative 11 may authorise the issue of bonus shares to members of the cooperative if 12 the assets of the cooperative-- 13 (a) have been sold at a profit; or 14 (b) have been revalued at a greater value than that disclosed before the 15 revaluation in the books of the cooperative. 16 (2) This section does not apply if the assets were acquired for resale at a 17 profit. 18 on bonus shares 19 Restrictions 151. Bonus shares under section 150 may be issued under the rules of 20 the cooperative, subject to the following restrictions-- 21 (a) each issue must have been approved by a special resolution of the 22 cooperative; 23 (b) they are to be issued as fully paid-up shares with no payment 24 required to be made by a member of the cooperative to whom 25 they are issued; 26 (c) they are to be issued only for shares of the same class of shares 27 41 Sections 17 (Approval of disclosure statement) and 29 (Appeal against refusal to approval disclosure statement) 42 Section 266 (Distribution of surplus or reserves to members)

 


 

s 152 98 s 152 Cooperatives that are fully paid-up as at the date of issue of the bonus shares; 1 (d) the total nominal value of bonus shares issued by a cooperative in 2 any year must not be more than 20%, or another percentage 3 prescribed under a regulation, of the nominal value of the issued 4 share capital of the cooperative immediately before the date of 5 issue of the bonus shares. 6 about bonus shares 7 Notice 152. Notice of the meeting or postal ballot at which a resolution is to be 8 proposed as a special resolution to approve a bonus share issue must be 9 accompanied by-- 10 (a) a statement of the value of the assets concerned as disclosed in the 11 books of the cooperative before the sale or revaluation; and 12 (b) if the issue arises from, or partly from, a sale of assets--a 13 statement of the price for which the assets were sold; and 14 (c) if the issue arises from, or partly from, a revaluation of assets--a 15 certificate of value of the assets, being a certificate given in 16 relation to a valuation made not more than 1 year before the date 17 of the notice by a person prescribed under a regulation or a person 18 having qualifications prescribed under a regulation; and 19 (d) particulars of acquisitions of shares in the cooperative made 20 within the 3 years immediately preceding the date of the notice by 21 or on behalf of each of its directors and his or her spouse and the 22 father, mother, children, brothers and sisters of each director and 23 spouse; and 24 (e) a certificate signed by 2 directors of the cooperative stating that to 25 the best of their knowledge and belief the issue of bonus shares 26 would not be imprudent and no circumstances are known to them 27 as to why the issue should not take place. 28

 


 

s 153 99 s 154 Cooperatives Division 4--Beneficial and non-beneficial interest in shares 1 of non-beneficial ownership at time of transfer 2 Notice 153.(1) If it may reasonably be expected (having regard to all relevant 3 circumstances) that on registration of a transfer of shares the transferee will 4 hold some or all of the shares non-beneficially, the instrument of transfer 5 must include a non-beneficial ownership notice. 6 (2) A non-beneficial ownership notice is a notice that-- 7 (a) contains a statement to the effect that, on registration of the 8 transfer, the transferee will hold particular shares non-beneficially; 9 and 10 (b) states particulars of the shares; and 11 (c) is signed by or on behalf of the transferee. 12 (3) A transferee must ensure this section is complied with when an 13 instrument of transfer of shares is filed by or on behalf of the transferee 14 with the cooperative for registration of the transfer. 15 Maximum penalty--10 penalty units or 3 months imprisonment. 16 (4) An offence under this section does not affect the validity of the 17 registration of a transfer of shares. 18 of non-beneficial ownership not notified at time of transfer 19 Notice 154.(1) If on the registration of an instrument of transfer of shares the 20 transferee holds non-beneficially any of the shares transferred, notice of that 21 fact must be given to the cooperative. 22 (2) The notice must-- 23 (a) state the name and address of the transferee; and 24 (b) contain a statement to the effect that, as from registration of the 25 transfer, the transferee holds the shares non-beneficially; and 26 (c) state particulars of the shares; and 27 (d) be signed by or on behalf of the transferee. 28 (3) The notice must be given within 14 days after the registration of the 29

 


 

s 155 100 s 155 Cooperatives transfer (even if before the end of that 14 days the transferee begins to hold 1 any of the relevant shares beneficially). 2 (4) The transferee of the shares must ensure this section is complied 3 with. 4 Maximum penalty--10 penalty units or 3 months imprisonment. 5 (5) This section does not apply to any shares for which particulars were 6 given in a non-beneficial ownership notice under section 153 that were 7 included in the instrument of transfer. 8 as beneficial owner of shares notified as non-beneficially 9 Registration transferred 10 155.(1) If an instrument of transfer of shares filed with a cooperative 11 includes a non-beneficial ownership notice under section 15343 for 12 particular shares but on registration of the transfer the transferee holds some 13 or all of the shares beneficially, notice of that fact must be given to the 14 cooperative. 15 (2) The notice must-- 16 (a) state the name and address of the transferee; and 17 (b) contain a statement to the effect that, as from registration of the 18 transfer, the transferee holds the relevant shares beneficially; and 19 (c) state particulars of the shares held beneficially; and 20 (d) be signed by or on behalf of the transferee. 21 (3) The notice must be given within 14 days after the registration of the 22 transfer (even if before the end of that 14 days the transferee begins to hold 23 any of the relevant shares non-beneficially). 24 (4) The transferee of the shares must ensure this section is complied 25 with. 26 Maximum penalty--10 penalty units or 3 months imprisonment. 27 43 Section 153 (Notice of non-beneficial ownership at time of transfer)

 


 

s 156 101 s 158 Cooperatives of change in nature of shareholding 1 Notification 156.(1) A person must notify the cooperative under this section of the 2 change in the person's shareholding in the cooperative if the person-- 3 (a) starts to hold any shares beneficially that the person currently 4 holds non-beneficially; or 5 (b) starts to hold any shares non-beneficially that the person currently 6 holds beneficially. 7 Maximum penalty--10 penalty units or 3 months imprisonment. 8 (2) The notice must-- 9 (a) state the name and address of the person; and 10 (b) contain a statement to the effect that, as from the time of the 11 change, the person holds the shares beneficially or 12 non-beneficially (as appropriate); and 13 (c) state the time of the change and state particulars of the shares 14 affected; and 15 (d) be signed by or on behalf of the person. 16 (3) The notice must be given within 14 days after the change (even if 17 before the end of that 14 days another change of that type affecting any of 18 the shares occurs). 19 of awareness 20 Presumption 157.(1) For this division, a person is, unless the contrary is established, 21 to be presumed to have been aware at a particular time of a circumstance of 22 which an employee or agent of the person was aware at that time. 23 (2) Subsection (1) applies only if the employee or agent has duties or acts 24 in relation to the transfer to, or ownership by, the person of a share or 25 shares in the cooperative concerned. 26 that shares held non-beneficially 27 Presumption 158.(1) A person is taken to hold particular shares non-beneficially if the 28 person-- 29

 


 

s 159 102 s 160 Cooperatives (a) holds the shares in a capacity other than that of sole beneficial 1 owner; or 2 (b) without limiting paragraph (a), holds the shares as trustee for, as 3 nominee for, or otherwise on behalf of or on account of, another 4 person. 5 (2) A person is taken to hold shares beneficially at a particular time 6 unless the person holds the shares non-beneficially at that time. 7 of beneficial and non-beneficial interests in register of 8 Noting members 9 159.(1) The register of members kept by a cooperative must contain a 10 statement of the shares each member holds beneficially and of the shares 11 each member holds non-beneficially. 12 (2) In deciding for the purposes of an entry in the register whether a 13 member of a cooperative holds shares beneficially or non-beneficially, 14 regard is to be had only to the following information-- 15 (a) information contained in a non-beneficial ownership notice under 16 section 15344 included in an instrument of transfer registered by 17 the cooperative; 18 (b) information contained in a notice given to the cooperative under 19 another provision of this division. 20 as trustee etc. on death of owner of shares 21 Registration 160.(1) A trustee, executor or administrator of the estate of a dead person 22 who was the registered holder of a share in a cooperative may be registered 23 as the holder of the share as trustee, executor or administrator of the estate. 24 (2) A trustee, executor or administrator of the estate of a dead person 25 who was entitled in equity to a share in a cooperative may, with the consent 26 of the cooperative and of the registered holder of the share, be registered as 27 the holder of the share as trustee, executor or administrator of the estate. 28 44 Section 153 (Notice of non-beneficial ownership at time of transfer)

 


 

s 161 103 s 163 Cooperatives as administrator of estate on incapacity of shareholder 1 Registration 161.(1) This section applies to a person (the "appointed person") who 2 is appointed under a law of a State relating to the administration of the 3 estates of persons who, through mental or physical infirmity, are incapable 4 of managing their affairs, to administer the estate of another person (the 5 "incapable person"). 6 (2) If the incapable person is the registered holder of a share in a 7 cooperative, the appointed person may be registered as the holder of the 8 share as administrator of the estate of the incapable person. 9 (3) If the incapable person is entitled in equity to a share in a cooperative, 10 the appointed person may, with the consent of the cooperative and of the 11 registered holder of the share, be registered as the holder of the share as 12 administrator of the estate of the incapable person. 13 as Official Trustee in Bankruptcy 14 Registration 162.(1) This section applies when a share in a cooperative that is the 15 property of a bankrupt vests by force of the Bankruptcy Act 1966 (Cwlth) in 16 the Official Trustee in Bankruptcy. 17 (2) If the bankrupt is the registered holder of the share, the official trustee 18 may be registered as the holder of the share as the Official Trustee in 19 Bankruptcy. 20 (3) If the bankrupt is entitled in equity to the share, the official trustee 21 may, with the consent of the cooperative and of the registered holder of the 22 share, be registered as the holder of the share as the Official Trustee in 23 Bankruptcy. 24 of person registered as trustee or administrator 25 Liabilities 163.(1) A person registered under section 160, 161 or 162 45 is, while so 26 registered, subject to the same liabilities in relation to the share as the 27 liabilities to which the person would have been subject if the share had 28 45 Section 160 (Registration as trustee etc. on death of owner of shares), 161 (Registration as administrator of estate on incapacity of shareholder) or 162 (Registration as Official Trustee in Bankruptcy)

 


 

s 164 104 s 166 Cooperatives remained, or had been, registered in the name of the dead person, the 1 incapable person or the bankrupt. 2 (2) The person registered is subject to no other liabilities in relation to the 3 share. 4 of trusts in register of members 5 Notice 164. Shares held by a trustee under a particular trust may, with the 6 consent of the cooperative, be marked in the register of members in a way 7 that identifies the shares as being held under the trust. 8 notice of trust except as provided by this division 9 No 165. Except as provided in this division-- 10 (a) no notice of a trust, whether express, implied or constructive, is to 11 be entered on a register or be receivable by the registrar; and 12 (b) no liabilities are affected by anything done under this division; 13 and 14 (c) nothing done under this division affects a cooperative with notice 15 of a trust. 16 Division 5--Sale or transfer of shares 17 or transfer of shares 18 Sale 166.(1) A share in a cooperative can not be sold or transferred except-- 19 (a) on the death of a member--under part 4, division 346 and 20 section 167; or 21 (b) to a person appointed to administer the estate of a shareholder 22 under a law relating to the administration of the estates of persons 23 who, through mental or physical infirmity, are incapable of 24 managing their affairs; or 25 46 Part 4, division 3 (Death of member)

 


 

s 167 105 s 169 Cooperatives (c) with the consent of the board--to any person, if there are 1 reasonable grounds for believing the person will be an active 2 member of the cooperative. 3 (2) A share in a cooperative can not be sold or transferred except under 4 the rules of the cooperative. 5 on death of member 6 Transfer 167.(1) On the death of a member, the member's share in the 7 cooperative can not be transferred to a person other than an administrator or 8 executor except with the consent of the board of the cooperative. 9 (2) The board may only give its consent under subsection (1) if there are 10 reasonable grounds for believing the person will be an active member of the 11 cooperative. 12 on total shareholding 13 Restriction 168. The board of a cooperative must not consent under section 166 14 or 167 to the sale or transfer of a share if, because of the sale or transfer, the 15 nominal value of the shares held by the purchaser or transferee would be 16 more than-- 17 (a) 20% of the nominal value of the share capital of the cooperative; 18 or 19 (b) if a lower percentage is specified in the rules of the 20 cooperative--that lower percentage of the nominal value of the 21 share capital of the cooperative. 22 not effective until registered 23 Transfer 169. A transferor of a share remains the holder of the share until the 24 transfer is registered and the name of the transferee is entered in the register 25 of members for the share. 26

 


 

s 170 106 s 171 Cooperatives 6--Repurchase of shares 1 Division and repayment of shares 2 Purchase 170.(1) The rules of a cooperative may authorise the cooperative to-- 3 (a) purchase any share of a member in the cooperative at the request 4 of the member; and 5 (b) repay to a member, with the member's consent, all or any part of 6 the amount paid up on any share held by the member when the 7 amount repaid is not required for the activities of the cooperative. 8 (2) The amount paid by a cooperative under this section in purchasing 9 shares or repaying any amount paid up on shares, or both, in any financial 10 year of the cooperative must not be more than the total of-- 11 (a) 5% of the nominal value of the issued share capital of the 12 cooperative immediately before the start of the financial year; and 13 (b) the amount of any additional share capital of the cooperative 14 subscribed for within that year. 15 (3) The members of a cooperative may, by special resolution, exempt a 16 cooperative from the operation of subsection (2) in relation to a particular 17 financial year, either unconditionally or on conditions. 18 (4) The amount paid for a share when it is repurchased may be an 19 amount decided by the board that is less than the nominal value of the share 20 but only-- 21 (a) if the records of the cooperative disclose that the amount paid is 22 the net shareholder's equity per share in the undertaking of the 23 cooperative; or 24 (b) under the rules of the cooperative. 25 (5) This section does not apply if the member has resigned or has been 26 expelled from the cooperative or the member's membership has been 27 otherwise cancelled. 28 or debentures instead of payment when share repurchased 29 Deposit 171.(1) If a cooperative repurchases a share of a member, the cooperative 30

 


 

s 171 107 s 171 Cooperatives may instead of paying the purchase price to the member-- 1 (a) for a deposit-taking cooperative--apply the amount as an interest 2 bearing deposit by the member with the cooperative; or 3 (b) allot or issue debentures of the cooperative to the member in 4 satisfaction of the amount. 5 (2) Subsection (1) applies only if-- 6 (a) the board considers payment of the repurchase price would 7 adversely affect the financial position of the cooperative; or 8 (b) the board and the member so agree. 9 (3) The deposit or debenture bears interest during any period-- 10 (a) for a cooperative with share capital-- 11 (i) at the rate (or, if there is more than 1 rate, at the higher or 12 highest rate) of dividend payable for that period on the share 13 capital of the cooperative; or 14 (ii) if the rate of dividend payable for that period has not been 15 decided--at the rate (or the higher or highest rate) payable 16 for the immediately preceding period for which a rate has 17 been decided; or 18 (iii) if a rate of dividend has never been decided for the share 19 capital of the cooperative--at the rate the board of the 20 cooperative considers reasonable; or 21 (b) for a cooperative without share capital--at the rate the board of 22 the cooperative considers reasonable; or 23 (c) if the rules provide for a rate to be payable that is higher than the 24 rate applicable under paragraph (a) or (b)--at the higher rate. 25 (4) The deposit or debenture must be repaid to the member as soon as 26 repayment would not, in the opinion of the board, adversely affect the 27 financial position of the cooperative. 28 (5) The deposit or debenture must in any case be repaid within 10 years 29 (or within any shorter period the rules of the cooperative require) after the 30 repurchase of the shares concerned. 31

 


 

s 172 108 s 175 Cooperatives of shares 1 Cancellation 172. A cooperative must cancel any share purchased by or forfeited to 2 the cooperative under this Act or the rules of the cooperative. 3 ART 8--VOTING 4 P Division 1--Voting entitlements 5 of part 6 Application 173. This part applies to all voting whether at meetings or in ballots 7 (including postal ballots). 8 9 Voting 174.(1) The right to vote attaches to membership and not shareholding. 10 (2) Except as provided in subsections (3) and (4), each member has only 11 1 vote at a meeting of the cooperative. 12 (3) If its rules so provide, a member of an association or federation may 13 have the number of votes (up to 5) at a general meeting that is stated in the 14 rules. 15 (4) If the rules so provide, the chairperson has a second vote at a board 16 meeting or general meeting. 17 (5) For joint membership-- 18 (a) the joint members have only 1 vote between them; and 19 (b) that vote may be exercised (subject to the grant of a proxy or 20 power of attorney) only by the joint member decided under the 21 rules. 22 by proxy 23 Voting 175.(1) If the rules so provide, voting may be by proxy at a general 24

 


 

s 176 109 s 178 Cooperatives meeting. 1 (2) The instrument of proxy may state the way in which a proxy is to 2 vote on a particular resolution. 3 (3) The proxy must vote in the way authorised by an instrument of proxy 4 mentioned in subsection (2). 5 (4) A person must not act as a proxy unless he or she-- 6 (a) is an active member of the cooperative; or 7 (b) for an association or a federation--may represent a component 8 cooperative or association of the association or federation on the 9 association or federation. 10 (5) A person must not act as proxy for more than 10 members (or a 11 lesser number of members stated in the rules of the cooperative) on any 12 1 occasion. 13 (6) Subsection (5) does not apply if the proxy acts under an instrument 14 of proxy mentioned in subsection (2). 15 on voting entitlement under power of attorney 16 Restriction 176. A person can not exercise, under a power of attorney, the power of 17 a member of the cooperative to vote if the person has that power in relation 18 to another member of the cooperative under another power of attorney. 19 on voting by representatives of corporations 20 Restriction 177. A person can not exercise, as the representative of a corporation, the 21 power of a corporation member of a cooperative to vote if the person has 22 that power as the representative of another corporation member of the 23 cooperative. 24 members not entitled to vote 25 Inactive 178. A member can not vote if the member is not an active member of 26 the cooperative. 27

 


 

s 179 110 s 181 Cooperatives of the right to vote 1 Control 179.(1) A person must not directly or indirectly control the exercise of 2 the right to vote of a member. 3 Maximum penalty--60 penalty units or 6 months imprisonment. 4 (2) If a person controls the exercise of the right to vote of a member at a 5 meeting of a cooperative-- 6 (a) the vote of the member is invalid; and 7 (b) if the person is a member--the vote of the person is invalid. 8 (3) Nothing in this section prevents the exercise of a vote by means of a 9 proxy or power of attorney. 10 of relevant share and voting interests on voting rights 11 Effect 180.(1) A member of a cooperative can not vote if another person 12 (whether or not a member of the cooperative) has a relevant interest in any 13 share held by the member or in the right to vote of the member. 14 (2) A member who can not vote because of this section may apply to the 15 registrar to review the matter. 16 (3) The registrar may order that the member may vote if he or she is 17 satisfied in the circumstances of the case that loss of the right to vote would 18 be unjust or unreasonable, and the order of the registrar has effect 19 accordingly. 20 of representatives to vote 21 Rights 181. A person appointed under this Act to represent a member of a 22 cooperative, association or federation-- 23 (a) is entitled to receive notice of all meetings in the same way as the 24 member represented; and 25 (b) is entitled to exercise the same rights to vote as the member 26 represented; and 27 (c) is eligible to be elected to the board of directors if the member 28 represented holds the qualifications required for holding office as 29 a director. 30

 


 

s 182 111 s 186 Cooperatives rights and duties of members not affected by ineligibility to vote 1 Other 182. A provision of this Act that disentitles a member of a cooperative to 2 vote (either generally or in relation to a particular matter) does not affect any 3 other right, entitlement, obligation or duty of the member as a member. 4 of disentitled member to be disregarded 5 Vote 183. Any vote cast by or on behalf of a member of a cooperative when 6 not entitled to vote must be disregarded. 7 2--Resolutions 8 Division to be by ordinary resolution 9 Decisions 184. Unless this Act or the rules of the cooperative otherwise provides, 10 every question for decision by a cooperative must be decided by ordinary 11 resolution. 12 resolutions 13 Ordinary 185. An ordinary resolution is a resolution of a cooperative that is passed 14 by a simple majority at a general meeting of the cooperative or in a postal 15 ballot of members. 16 resolutions 17 Special 186.(1) A special resolution is a resolution of a cooperative that is 18 passed-- 19 (a) by a two-thirds majority at a general meeting of members; or 20 (b) by a two-thirds majority in a postal ballot (other than a special 21 postal ballot) of members; or 22 (c) by a three-quarters majority in a special postal ballot of members. 23 (2) A special resolution may be passed by a postal ballot only if the rules 24 of the cooperative so permit or this Act requires the special resolution to be 25 passed by postal ballot (including a special postal ballot). 26

 


 

s 187 112 s 189 Cooperatives (3) A resolution must not be considered to have been passed as a special 1 resolution unless not less than 21 days notice has been given to the 2 members of the cooperative stating-- 3 (a) the intention to propose the special resolution; and 4 (b) the reasons for proposing the special resolution; and 5 (c) the effect of the special resolution being passed. 6 (4) A cooperative must give at least 28 days notice to the registrar of a 7 proposed special resolution before giving notice to the members of the 8 proposed special resolution. 9 Maximum penalty--20 penalty units. 10 (5) A failure to give notice to the registrar under subsection (4) does not 11 affect the validity of the resolution. 12 majority obtained is ascertained 13 How 187.(1) A resolution is passed by a particular majority at a meeting if that 14 majority of the members of the cooperative who, being entitled to do so, 15 vote in person or (if proxies are allowed) by proxy at the meeting vote in 16 favour of the resolution. 17 (2) A resolution is passed by a particular majority in a postal ballot if that 18 majority of the members of the cooperative who, being entitled to do so, 19 cast formal votes in the postal ballot vote in favour of the resolution. 20 by registrar 21 Disallowance 188. The registrar may disallow a proposed special resolution before it is 22 passed by written notice to the cooperative if the registrar considers the 23 effect of the special resolution, if passed, would be in contravention of this 24 Act or any other law. 25 of passing of special resolution 26 Declaration 189.(1) At a meeting of a cooperative for the purpose of passing a special 27 resolution, a declaration by the chairperson of the meeting that the resolution 28 has been passed as a special resolution is evidence of that fact. 29

 


 

s 190 113 s 192 Cooperatives (2) A declaration by the returning officer for a postal ballot to pass a 1 special resolution that the resolution has been passed as a special resolution 2 is evidence of that fact. 3 (3) Subsection (1) does not apply if a poll is taken at the meeting of the 4 cooperative. 5 of special resolution 6 Effect 190.(1) A special resolution has effect from the date it is passed. 7 (2) However, a special resolution relating to anything for which a special 8 resolution is required to be passed by special postal ballot has no effect until 9 it is registered. 10 of special resolution 11 Registration 191.(1) A cooperative must file 2 copies of each special resolution 12 passed by the cooperative with the registrar under this section for 13 registration. 14 (2) The copies must-- 15 (a) be filed within 28 days after the passing of a special resolution or 16 the further period the registrar allows; and 17 (b) be signed by a director and the secretary of the cooperative; and 18 (c) be accompanied by the filing fee prescribed under a regulation. 19 (3) A cooperative or an officer of the cooperative must not knowingly 20 fail to file the required copies under this section. 21 Maximum penalty--20 penalty units. 22 (4) This section and section 192 do not apply to a special resolution 23 altering the rules of a cooperative. 24 of registrar on application to register special resolution 25 Decision 192.(1) If the registrar is satisfied the cooperative has complied with this 26 Act and the special resolution is not contrary to this Act, the registrar must 27 register the special resolution. 28

 


 

s 193 114 s 193 Cooperatives (2) If the registrar considers the effect of a special resolution filed for 1 registration would be in contravention of this Act or any other law, the 2 registrar-- 3 (a) may refuse to register the special resolution; and 4 (b) must give written notice to the cooperative that the special 5 resolution-- 6 (i) for a special resolution mentioned in section 190(2)47--has 7 no effect; and 8 (ii) in any other case--has no effect as from the date it was 9 passed. 10 (3) A certificate of registration of a special resolution given by the 11 registrar is, in favour of any person advancing money to the cooperative on 12 the faith of the certificate or in favour of any guarantor of that advance, 13 evidence that the resolution was properly passed. 14 3--Postal ballots 15 Division ballots 16 Postal 193.(1) A postal ballot may be held as provided by the rules of a 17 cooperative and must be conducted in the way prescribed under a 18 regulation. 19 (2) On the declaration by the returning officer of the result of the ballot, 20 the secretary of the cooperative must make an entry in the minute book of 21 the cooperative showing-- 22 (a) the number of formal votes cast in favour of the proposal 23 concerned; and 24 (b) the number of formal votes cast against the proposal; and 25 (c) the number of informal votes cast. 26 47 Section 190 (Effect of special resolution)

 


 

s 194 115 s 195 Cooperatives postal ballots 1 Special 194.(1) A special postal ballot is a postal ballot that is conducted as 2 required by this section. 3 (2) The ballot must not be held less than 21 days after notice of the ballot 4 is given to members so as to enable enough time for a meeting to discuss 5 the proposal the subject of the ballot to be called and held (whether by the 6 board or on the requisition of members). 7 (3) The cooperative must send to each member (along with any other 8 material required to be sent in relation to the postal ballot) a disclosure 9 statement approved by the registrar and containing information about-- 10 (a) the financial position of the cooperative; and 11 (b) the interests of the directors of the cooperative in the proposal 12 with which the ballot is concerned, including any interests of the 13 directors in another organisation concerned in the proposal; and 14 (c) any compensation or consideration to be paid to officers or 15 members of the cooperative in connection with the proposal; and 16 (d) any other matters the registrar directs. 17 (4) If the registrar so requires, the statement is to be accompanied by a 18 report made by an independent person approved by the registrar about any 19 matters the registrar directs. 20 (5) Sections 17 (except subsection (2)) and 29 48 apply to the approval of 21 a disclosure statement under this section with any necessary changes and in 22 particular as if a reference in section 17 to a formation meeting were a 23 reference to the notice of the special postal ballot. 24 is a special postal ballot required 25 When 195. In addition to any requirement of this Act, the rules of a cooperative 26 must require a special postal ballot to be conducted for passing a special 27 resolution in relation to any of the following matters relating to a 28 cooperative-- 29 48 Section 17 (Approval of disclosure statement) and 29 (Appeal against refusal to approve disclosure statement)

 


 

s 196 116 s 196 Cooperatives (a) conversion of-- 1 (i) a share capital cooperative to a non-share capital cooperative 2 or vice versa; or 3 (ii) a trading cooperative to a non-trading cooperative or vice 4 versa; 5 (b) transfer of incorporation; 6 (c) an acquisition or disposal of assets mentioned in section 268;49 7 (d) the maximum permissible level of share interest in the 8 cooperative; 9 (e) takeover; 10 (f) merger; 11 (g) transfer of engagements; 12 (h) members' voluntary winding-up. 13 of postal ballot on requisition 14 Holding 196.(1) The board of a cooperative must conduct a postal ballot 15 (including a special postal ballot) for the passing of a special resolution on 16 the written requisition of the number of members who together are able to 17 cast at least 20% (or a lesser percentage specified in the rules of the 18 cooperative) of the total number of votes able to be cast at a meeting of the 19 cooperative. 20 (2) A member can not be a requisitioning member unless the member is 21 an active member. 22 (3) The following provisions apply to a requisition for a postal ballot-- 23 (a) it must state-- 24 (i) the proposed special resolution to be voted on; and 25 (ii) the reasons for the making of the special resolution; and 26 (iii) the effect of the special resolution being passed; 27 (b) it must be signed by the requisitioning members (and may 28 49 Section 268 (Acquisition and disposal of assets)

 


 

s 197 117 s 198 Cooperatives consist of several documents in like form each signed by 1 or 1 more of the requisitioning members); 2 (c) it must be served on the cooperative by being filed at the 3 registered office of the cooperative. 4 (4) The postal ballot must be conducted as soon as practicable and in any 5 case must be conducted within 2 months after the requisition is served. 6 (5) If the special resolution for which the requisitioned postal ballot is 7 conducted is not passed, the cooperative may recover the expenses of the 8 postal ballot from the members who requisitioned the postal ballot as a debt 9 payable to the cooperative. 10 involved in postal ballots on requisition 11 Expenses 197.(1) All reasonable expenses incurred by a cooperative in preparing 12 for and holding a special postal ballot are taken to form the expenses of the 13 postal ballot for section 196. 14 (2) Those expenses include (but are not limited to) the following 15 expenses-- 16 (a) the cost of obtaining expert advice (including legal and financial 17 advice) and of commissioning expert reports; 18 (b) costs attributable to the use of staff of the cooperative in preparing 19 for and holding the ballot; 20 (c) the cost of producing, printing and posting the ballot papers and 21 other material associated with the ballot. 22 Division 4--Meetings 23 general meetings 24 Annual 198.(1) The first annual general meeting of a cooperative must be held 25 within 19 months after the incorporation of the cooperative. 26 (2) The second or any later annual general meeting of a cooperative must 27 be held within-- 28 (a) 5 months after the close of the financial year of the cooperative; or 29

 


 

s 199 118 s 202 Cooperatives (b) the further time the registrar may allow or prescribed under a 1 regulation. 2 general meetings 3 Special 199. A special general meeting of a cooperative may be called at any time 4 by the board of directors. 5 of meetings 6 Notice 200. The board must give each member at least 14 days notice of each 7 general meeting. 8 at meetings 9 Quorum 201.(1) The quorum for a meeting of a cooperative must be stated in the 10 rules. 11 (2) An item of business must not be transacted at a meeting of a 12 cooperative unless a quorum of members entitled to vote is present during 13 the transaction of that item. 14 at meetings 15 Decision 202.(1) A question for decision at a general meeting must be decided by 16 a majority of members present in person at the meeting and voting, but this 17 is subject to any other provisions of this Act and to the rules of the 18 cooperative. 19 (2) Unless a poll is demanded by at least 5 members, a question for 20 decision at a general meeting must be decided by a show of hands. 21 (3) In the case of an equality of votes, whether on a show of hands or on 22 a poll, the chairperson of the meeting at which the show of hands takes 23 place or at which the poll is demanded may exercise a second or casting 24 vote if the rules so provide. 25

 


 

s 203 119 s 203 Cooperatives of general meeting on requisition 1 Calling 203.(1) The board of a cooperative must call a general meeting of the 2 cooperative on the written requisition of the number of members who 3 together are able to cast at least 20% (or a lower percentage specified in the 4 rules of the cooperative) of the total number of votes able to be cast at a 5 meeting of the cooperative. 6 (2) A member can not be a requisitioning member unless the member is 7 an active member. 8 (3) The following provisions apply to a requisition for a general 9 meeting-- 10 (a) it must state the objects of the meeting; 11 (b) it must be signed by the requisitioning members (and may 12 consist of several documents in like form each signed by 1 or 13 more of the requisitioning members); 14 (c) it must be served on the cooperative by being filed at the 15 registered office of the cooperative. 16 (4) The meeting must be called and held as soon as practicable and in any 17 case must be held within 2 months after the requisition is served. 18 (5) If the board does not call the meeting within 21 days after the 19 requisition is served, the following provisions apply-- 20 (a) the requisitioning members (or any of them representing at least 21 half their total voting rights) may call the meeting in the same 22 way as nearly as possible as meetings are called by the board; 23 (b) for that purpose they may ask the cooperative to supply a written 24 statement setting out the names and addresses of the persons 25 entitled when the requisition was served to receive notice of 26 general meetings of the cooperative; 27 (c) the board must send the requested statement to the requisitioning 28 members within 7 days after the request for the statement is 29 made; 30 (d) the meeting called by the requisitioning members must be held 31 within 3 months after the requisition is served; 32 (e) any reasonable expenses incurred by the requisitioning members 33

 


 

s 204 120 s 205 Cooperatives because of the board's failure to call the meeting must be paid by 1 the cooperative; 2 (f) any amount required to be paid by the cooperative under 3 paragraph (e) must be retained by the cooperative out of any 4 money due from the cooperative by way of fees or other 5 remuneration for their services to any of the directors that were in 6 default. 7 inutes 8 M 204.(1) Minutes of each general meeting, board meeting and 9 subcommittee meeting must be entered in the appropriate records and 10 confirmed at and signed by the chairperson of the next meeting. 11 (2) The minutes of each general meeting must be available for inspection 12 by members. 13 (3) The rules may provide that the minutes of board meetings and 14 subcommittee meetings be available for inspection by members. 15 (4) Minutes must be kept in the English language. 16 ART 9--MANAGEMENT AND ADMINISTRATION 17 P OF COOPERATIVES 18 1--The board 19 Division of directors 20 Board 205.(1) Subject to this Act and the rules of the cooperative, the business 21 of a cooperative is to be managed by a board of directors. 22 (2) The board of directors may exercise all the powers of the cooperative 23 that are not, by this Act or the rules of the cooperative, required to be 24 exercised by the cooperative in general meeting. 25

 


 

s 206 121 s 206 Cooperatives (3) The acts of a director are valid despite any defect that may afterwards 1 be discovered in his or her appointment or qualification. 2 of directors 3 Election 206.(1) Except as provided in subsections (2), (3) and (4), the directors 4 of a cooperative are to be elected in the way specified in the rules of the 5 cooperative. 6 (2) The first directors of-- 7 (a) a cooperative formed under this Act are to be elected at its 8 formation meeting; or 9 (b) a cooperative that was a corporation incorporated under another 10 Act are to be the directors in office at the date of registration under 11 this Act. 12 (3) If authorised by the rules of the cooperative, a board of directors may 13 appoint a person to fill a casual vacancy in the office of a director until the 14 next annual general meeting. 15 (4) A motion approving or nominating for election 2 or more persons as 16 directors by a single resolution must not be made at a meeting of a 17 cooperative unless a resolution that it be made has first been agreed to by 18 the meeting without any vote being given against it. 19 (5) If a resolution is passed following a motion in contravention of 20 subsection (4)-- 21 (a) the resolution is void; and 22 (b) there is no provision for the automatic re-election of retiring 23 directors in default of another election. 24 (6) This section does not apply to a resolution altering the rules to prevent 25 the election of 2 or more directors by ballot. 26 (7) A nomination for election or appointment to the office of a director 27 must give details of the qualifications and experience of the person 28 nominated. 29 (8) Unless this Act or the rules of a cooperative otherwise provides, a 30 director is eligible for re-election at the end of his or her term of office. 31

 


 

s 207 122 s 208 Cooperatives of directors 1 Qualification 207.(1) A person is not qualified to be a director of a cooperative unless 2 he or she is-- 3 (a) a member of the cooperative or a representative of a corporation 4 that is a member of the cooperative ("member director"); or 5 (b) an employee of the cooperative or a person qualified as provided 6 by the rules ("independent director"). 7 (2) A person may only be elected or appointed as an independent director 8 if there are at least 3 member directors appointed for each independent 9 director. 10 persons 11 Disqualified 208.(1) A person must not act as a director or directly or indirectly take 12 part in or be concerned with the management of a cooperative if the 13 person-- 14 (a) is the auditor of the cooperative or a partner, employee or 15 employer of the auditor; or 16 (b) has been convicted, whether before or after the commencement of 17 this section, within or outside Queensland-- 18 (i) on indictment of an offence relating to the promotion, 19 formation or management of a corporation; or 20 (ii) of an offence involving fraud or dishonesty punishable on 21 conviction by imprisonment for not less than 3 months; or 22 (iii) of an offence under the Corporations Law, section 232, 590, 23 591, 592, 704, 705 or 996 or under a provision of a law in 24 force in another State that corresponds with any of those 25 sections; or 26 (iv) of an offence under a provision of a previous law of 27 Queensland or another State, with which any of the 28 provisions mentioned in subparagraph (iii) corresponds; 29 within 5 years after the conviction or, if sentenced to 30 imprisonment, after his or her release from prison, except with 31 the leave of the Supreme Court. 32

 


 

s 209 123 s 209 Cooperatives Maximum penalty--240 penalty units or 2 years imprisonment. 1 (2) A person must not act as a director or directly or indirectly take part 2 in or be concerned with the management of a cooperative if the person-- 3 (a) has been convicted of an offence under this Act, within 5 years 4 after the conviction, except with leave of the Supreme Court; or 5 (b) is prohibited from being a director of a company under the 6 Corporations Law, section 599; or 7 (c) is an insolvent under administration (as defined in the 8 Corporations Law); or 9 (d) is prohibited from managing a cooperative by an order under the 10 Corporations Law, section 1317EA as adopted under this Act. 11 Maximum penalty--240 penalty units or 2 years imprisonment. 12 (3) In a proceeding for an offence against subsection (1), a certificate by 13 an authority prescribed under a regulation for this section stating that a 14 person was released from prison on a stated date is evidence the person was 15 released from prison on that date. 16 (4) A person who intends to apply for leave of the Supreme Court must 17 give the registrar at least 21 days notice of his or her intention. 18 (5) The Supreme Court may grant leave subject to any condition or 19 limitation it considers appropriate. 20 (6) A person must comply with any condition or limitation subject to 21 which leave is granted. 22 Maximum penalty--240 penalty units or 2 years imprisonment. 23 (7) On the application of the registrar, the Supreme Court may revoke its 24 leave. 25 (8) Subject to this section, the Corporations Law, section 599 is adopted 26 as far as is applicable to cooperatives and applies with any changes that are 27 necessary and any other changes prescribed under a regulation. 28 of the board of directors 29 Meeting 209.(1) Meetings of the board of directors must be held at least once 30 every 3 months and may be held as often as may be necessary. 31

 


 

s 210 124 s 210 Cooperatives (2) A meeting of the board of directors may be called by a director giving 1 notice individually to every other director. 2 (3) The board of directors may hold meetings, or allow directors to take 3 part in its meetings by telephone, video link, or another form of 4 communication that allows reasonably contemporaneous and continuous 5 communication between the directors taking part in the meeting. 6 (4) A quorum of a meeting of the board of directors is 50% of the 7 number of directors, or a greater number of directors specified in the rules. 8 (5) The chairperson of the board may be elected either by the board or at 9 a general meeting of the cooperative, and is to be elected, hold office, and 10 retire, and may be removed from office, as provided by the rules of the 11 cooperative. 12 of business outside meetings 13 Transaction 210.(1) The board of a cooperative may, if it considers appropriate, 14 transact any of its business by the circulation of papers among all of the 15 directors of the board. 16 (2) A resolution in writing approved in writing by a majority of the 17 directors of the board is to be taken to be a decision of the board. 18 (3) Separate copies of a resolution may be distributed for signing by the 19 directors if the wording of the resolution and approval is identical in each 20 copy. 21 (4) For the approval of a resolution under this section, the chairperson of 22 the board and each director of the board have the same voting rights as they 23 have at an ordinary meeting of the board. 24 (5) The resolution is approved when the last director required for the 25 majority signs. 26 (6) A resolution approved under this section must be recorded in the 27 minutes of the meetings of the board. 28 (7) Papers may be circulated among directors of the board for this 29 section by facsimile or other transmission of the information in the papers 30 concerned. 31

 


 

s 211 125 s 213 Cooperatives directors 1 Deputy 211.(1) In the absence of a director from a meeting of the board, a person 2 appointed by the board under the rules of the cooperative concerned to act as 3 a deputy for the director may act in the place of the director. 4 (2) The rules of the cooperative may include provisions regulating the 5 term of office, vacation of or removal from office, and remuneration of a 6 deputy. 7 by board 8 Delegation 212.(1) If authorised by the rules of a cooperative, the board may, by 9 resolution, delegate the board's powers (other than this power of delegation) 10 stated in the resolution-- 11 (a) to a director; or 12 (b) to a committee of 2 or more directors; or 13 (c) to a committee of members of the cooperative; or 14 (d) to a committee of members of the cooperative and other persons 15 if members form the majority of persons on the committee. 16 (2) To remove any doubt, it is declared that the Acts Interpretation Act 17 1954, section 27A applies to a delegation under this section. 18 from and vacation of office 19 Removal 213.(1) The directors hold office and must retire, and may be removed 20 from office, as provided by the rules of the cooperative. 21 (2) A director vacates office in the circumstances, if any, provided in the 22 rules of the cooperative and in any of the following cases-- 23 (a) if the director is disqualified from being a director as provided by 24 section 208;50 25 (b) if the director absents himself or herself from 3 consecutive 26 ordinary meetings of the board without its leave; 27 (c) if the director resigns the office of director by written notice given 28 50 Section 208 (Disqualified persons)

 


 

s 214 126 s 214 Cooperatives by the director to the cooperative; 1 (d) if the director is removed from office by special resolution of the 2 cooperative; 3 (e) if the person ceases to hold the qualification because of which the 4 person was qualified to be a director; 5 (f) if an administrator of the cooperative's affairs is appointed under 6 part 12, division 5.51 7 Division 2--Duties and liabilities of directors, officers and employees 8 of "officer" 9 Meaning 214. In this division-- 10 "officer", of a cooperative, means-- 11 (a) a director or secretary of the cooperative; or 12 (b) a person who is concerned, or takes part, in the management of 13 the cooperative, whether or not as a director; or 14 (c) a receiver, or receiver and manager, of property of the 15 cooperative, or another authorised person who enters into 16 possession or assumes control of property of the cooperative for 17 enforcing a charge; or 18 (d) an administrator of a deed of arrangement executed by the 19 cooperative; or 20 (e) a liquidator or provisional liquidator appointed in a voluntary 21 winding-up of the cooperative; or 22 (f) an administrator of the cooperative appointed under the 23 Corporations Law, part 5.3A as adopted and applying under this 24 Act; or 25 (g) a trustee or other person administering a compromise or 26 arrangement made between the cooperative and another person or 27 other persons. 28 51 Part 12, division 5 (Appointment of administrator)

 


 

s 215 127 s 217 Cooperatives must act honestly 1 Officers 215. An officer of a cooperative must at all times act honestly in the 2 exercise of his or her powers and the discharge of the duties of his or her 3 office, both in the State and elsewhere. 4 Maximum penalty-- 5 (a) for a contravention committed with intent to deceive or defraud 6 the cooperative, members or creditors of the cooperative or 7 creditors of another person or for another fraudulent 8 purpose--240 penalty units or 2 years imprisonment; or 9 (b) in another case--60 penalty units. 10 of care and diligence required 11 Standard 216.(1) In the exercise of his or her powers and the discharge of his or 12 her functions, an officer of a cooperative must exercise the degree of care 13 and diligence a reasonable person in a like position in a cooperative would 14 exercise in the cooperative's circumstances. 15 Maximum penalty--20 penalty units. 16 (2) An officer is not liable to be convicted for a contravention of this 17 section if the cooperative has resolved by ordinary resolution to forgive the 18 contravention. 19 use of information or position 20 Improper 217.(1) An officer or employee or former officer or employee of a 21 cooperative or a member of a committee mentioned in section 212(1)52 22 must not make improper use of information acquired because of his or her 23 position as an officer or employee or member to gain, directly or indirectly, 24 an advantage for himself or herself or for any other person or to cause 25 detriment to the cooperative. 26 (2) An officer or employee of a cooperative or a member of a committee 27 mentioned in section 212(1) must not make improper use of his or her 28 position as an officer or employee or member, to gain, directly or indirectly, 29 52 Section 212 (Delegation by board)

 


 

s 218 128 s 220 Cooperatives an advantage for himself or herself or for any other person or to cause 1 detriment to the cooperative. 2 Maximum penalty-- 3 (a) for a contravention committed with intent to deceive or defraud 4 the cooperative, members or creditors of the cooperative or 5 creditors of another person or for another fraudulent 6 purpose--240 penalty units or 2 years imprisonment; or 7 (b) in another case--60 penalty units. 8 of damages by cooperative 9 Recovery 218.(1) If a person contravenes a provision of this division in relation to 10 a cooperative, the cooperative may, whether or not the person has been 11 convicted of an offence for contravention, recover an amount from the 12 person as a debt payable to the cooperative. 13 (2) The amount the cooperative may recover from the person is-- 14 (a) if the person or another person made a profit because of the 15 contravention--an amount equal to the profit; and 16 (b) if the cooperative has suffered loss or damage because of the 17 contravention--an amount equal to the loss or damage. 18 duties and liabilities not affected 19 Other 219. This division has effect in addition to, and does not limit, any rule of 20 law relating to the duty or liability of a person because of the person's office 21 or employment in relation to a cooperative and does not prevent the 22 institution of any civil proceeding for a breach of a duty or for a liability of 23 that type. 24 of officers and auditors 25 Indemnification 220.(1) A provision, whether contained in the rules or in a contract with a 26 cooperative or elsewhere, for exempting an officer or auditor of the 27 cooperative from, or indemnifying the officer or auditor against, liability 28 that by law would otherwise attach to the officer or auditor for negligence, 29 default, breach of duty or breach of trust of which the officer or auditor may 30

 


 

s 220 129 s 220 Cooperatives be guilty in relation to the cooperative is void. 1 (2) Subsection (1) does not apply in relation to a contract of insurance. 2 (3) Despite subsection (1), a cooperative may, under its rules or 3 otherwise, indemnify an officer or auditor against liability incurred by the 4 officer or auditor in defending a proceeding, whether civil or criminal, in 5 which judgment is given in the officer's or auditor's favour or in which the 6 officer or auditor is acquitted or an application in relation to a proceeding of 7 that type in which relief is under this section granted to the officer or auditor 8 by the court. 9 (4) If in a proceeding for negligence, default or breach of duty against an 10 officer or auditor of a cooperative it appears to the court that the person is or 11 may be liable for the negligence, default or breach of duty but acted honestly 12 and reasonably and that, having regard to all the circumstances of the case 13 (including those connected with the person's appointment), the person 14 ought fairly to be excused for the negligence, default or breach of duty, the 15 court may relieve the person, either wholly or partly, from the person's 16 liability on the terms the court considers appropriate. 17 (5) If an officer or auditor of a cooperative has reason to believe a claim 18 will or might be made against him or her for negligence, default or breach 19 of duty in relation to the cooperative, the person may apply to the Supreme 20 Court for relief, and the court then has the same power to relieve the person 21 as it would have under this section if it had been a court before which a 22 proceeding against the officer or auditor for negligence, default or breach of 23 duty had been brought. 24 (6) If any case to which subsection (4) applies is being tried by a judge 25 with a jury, the judge, after hearing the evidence, may, if satisfied that the 26 defendant should under that subsection be relieved either wholly or partly 27 from the liability sought to be enforced against him or her, withdraw the 28 case in whole or in part from the jury and direct judgment to be entered for 29 the defendant on the terms as to costs or otherwise that the judge considers 30 appropriate. 31 (7) In this section-- 32 "officer" includes an employee of a cooperative and another person who 33 may under the rules of the cooperative give directions in regard to the 34 business of the cooperative. 35

 


 

s 221 130 s 223 Cooperatives of Corporations Law provisions about officers of 1 Adoption cooperatives 2 221.(1) The provisions of the Corporations Law, sections 589 to 598 3 and 1307 are adopted by this section and apply to a cooperative in the same 4 way as they apply to a company. 5 (2) The provisions apply with any changes prescribed under a regulation 6 and as if-- 7 (a) a reference in the provisions to a company were a reference to a 8 cooperative; and 9 (b) a reference in the provisions to the Commission were a reference 10 to the registrar; and 11 (c) the reference in section 591 to section 289 were a reference to 12 section 23253 of this Act. 13 3--Restrictions on directors and officers 14 Division remuneration 15 Directors' 222. A director of a cooperative must not receive remuneration for 16 services as a director other than fees, concessions and other benefits 17 approved at a general meeting of the cooperative. 18 Maximum penalty--240 penalty units or 2 years imprisonment. 19 financial accommodation to officers prohibited 20 Certain 223.(1) An officer of a cooperative who is not a director of the 21 cooperative must not obtain financial accommodation from the cooperative 22 other than-- 23 (a) with the approval of a majority of the directors; or 24 (b) under a scheme about providing financial accommodation to 25 officers that has been approved by a majority of the directors. 26 Maximum penalty--240 penalty units or 2 years imprisonment. 27 53 Section 232 (Requirements for accounts and accounting records)

 


 

s 224 131 s 224 Cooperatives (2) For this section, financial accommodation is taken to be obtained by 1 an officer of a cooperative if it is obtained by-- 2 (a) a proprietary company in which the officer is a shareholder or 3 director; or 4 (b) a trust of which the officer is a trustee or beneficiary; or 5 (c) a trust of which a corporation is trustee if the officer is a director 6 or other officer of the corporation. 7 (3) A cooperative must not give financial accommodation to an officer of 8 the cooperative if-- 9 (a) by giving the financial accommodation, the officer would 10 contravene this section; and 11 (b) the cooperative knows or should reasonably know of the 12 contravention. 13 Maximum penalty--500 penalty units. 14 accommodation to directors and associates 15 Financial 224.(1) A cooperative must not provide financial accommodation to a 16 director, or to a person the cooperative knows or should reasonably know is 17 an associate of a director, unless-- 18 (a) the accommodation is-- 19 (i) approved under subsection (2); or 20 (ii) given under a scheme approved under subsection (2); or 21 (iii) provided on terms no more favourable to the director or 22 associate than the terms on which it is reasonable to expect 23 the cooperative would give if dealing with the director or 24 associate at arm's length in the same circumstances; and 25 (b) the directors have approved the accommodation, at a meeting of 26 the board at which a quorum was present, by a majority of at least 27 two-thirds of the directors present and voting on the matter. 28 Maximum penalty--500 penalty units. 29 (2) For subsection (1)(a)(i) and (ii), financial accommodation or a 30 scheme is approved if-- 31

 


 

s 224 132 s 224 Cooperatives (a) it is approved by a resolution passed at a general meeting; and 1 (b) the full details of the accommodation or scheme were made 2 available to members at least 21 days before the meeting. 3 (3) A director or an associate of a director must not obtain financial 4 accommodation given in contravention of subsection (1). 5 Maximum penalty--240 penalty units or 2 years imprisonment. 6 (4) For this section, a concessional rate of interest for a borrower from a 7 cooperative is a normal term only if the borrower is entitled to the 8 concession by being a member of a class of borrowers from the cooperative 9 specified in its rules as being entitled to the concession. 10 (5) If a director of a cooperative or an associate of a director accepts, in 11 payment of a debt owed by a member of the cooperative to the director or 12 associate, any proceeds of financial accommodation provided to the 13 member by the cooperative, this section has effect as if the financial 14 accommodation has been provided to the director or associate. 15 (6) In this section, a reference to-- 16 (a) the provision of financial accommodation to a director or an 17 associate of a director; or 18 (b) the obtaining of financial accommodation by a director or an 19 associate of a director; or 20 (c) a debt owed to a director or an associate of a director; 21 includes a reference to a provision of financial accommodation to, or an 22 obtaining of financial accommodation by, the director or associate, or a debt 23 owed to the director or associate, jointly with another person. 24 (7) In this section-- 25 "associate", of a director, means-- 26 (a) the director's spouse; or 27 (b) a person when acting in the capacity of trustee of a trust under 28 which-- 29 (i) the director or director's spouse has a beneficial interest; or 30 (ii) a corporation mentioned in paragraph (c) has a beneficial 31 interest; or 32

 


 

s 225 133 s 226 Cooperatives (c) a corporation if-- 1 (i) the director or director's spouse has a material interest in 2 shares in the corporation; and 3 (ii) the nominal value of the shares is not less than 10% of the 4 nominal value of the issued share capital of the corporation. 5 (8) For this section, a person has a "material interest" in a share in a 6 corporation if-- 7 (a) the person has power to withdraw the share capital subscribed for 8 the share or to exercise control over the withdrawal of the share 9 capital; or 10 (b) the person has power to dispose of or to exercise control over the 11 disposal of the share; or 12 (c) the person has power to exercise or to control the exercise of any 13 right to vote conferred on the holder of the share. 14 on directors of certain cooperatives selling land to 15 Restriction cooperative 16 225. A director of a cooperative, the primary activity of which is or 17 includes the acquisition of land to settle or retain people on the land and of 18 providing any community service or benefit, must not sell land to the 19 cooperative except under a special resolution of the cooperative. 20 Maximum penalty--240 penalty units or 2 years imprisonment. 21 contracts 22 Management 226.(1) In this section-- 23 "management contract" means a contract or other arrangement under 24 which-- 25 (a) a person who is not an officer of the cooperative agrees to 26 perform the whole, or a substantial part, of the functions of the 27 cooperative, whether under the control of the cooperative or not; 28 or 29 (b) a cooperative agrees to perform the whole or a substantial part of 30

 


 

s 227 134 s 227 Cooperatives its functions-- 1 (i) in a particular way; or 2 (ii) in accordance with the directions of any person; or 3 (iii) subject to stated restrictions or conditions. 4 (2) A cooperative must not enter into a management contract unless the 5 contract has first been approved by special resolution. 6 (3) A management contract entered into in contravention of 7 subsection (2) is void. 8 Division 4--Declaration of interests 9 of interest 10 Declaration 227.(1) A director of a cooperative who is or becomes in any way, 11 whether directly or indirectly, interested in a contract or proposed contract 12 with the cooperative must declare the nature and extent of the interest to the 13 board of directors under this section. 14 Maximum penalty--240 penalty units or 2 years imprisonment. 15 (2) For a proposed contract, the declaration must be made-- 16 (a) at the meeting of the board at which the question of entering into 17 the contract is first considered; or 18 (b) if the director was not at that time interested in the proposed 19 contract--at the next meeting of the board held after the director 20 becomes interested in the proposed contract. 21 (3) If a director becomes interested in a contract with the cooperative after 22 it is made, the declaration must be made at the next meeting of the board 23 held after the director becomes interested in the contract. 24 (4) For this section, a general written notice given to the board by a 25 director to the effect that the director-- 26 (a) is a member of a stated entity; and 27 (b) is to be regarded as interested in any contract that may, after the 28 giving of the notice, be made with the entity; 29

 


 

s 227 135 s 227 Cooperatives is enough declaration. 1 (5) A director of a cooperative who holds an office or has an interest in 2 property whereby, whether directly or indirectly, duties or interests might be 3 created that could conflict with the director's duties or interests as director 4 must, under subsection (6), declare at a meeting of the board of directors the 5 fact and the nature, character and extent of the conflict. 6 Maximum penalty--240 penalty units or 2 years imprisonment. 7 (6) A declaration required by subsection (5) in relation to holding an 8 office or having an interest must be made by a person-- 9 (a) if the person holds the office or has the interest when he or she 10 becomes a director--at the first meeting of the board held after 11 whichever is the later of the following-- 12 (i) the person becomes a director; 13 (ii) the relevant facts as to holding the office or having the 14 interest come to the person's knowledge; or 15 (b) if the person starts to hold the office or acquires the interest after 16 the person becomes a director--at the first meeting of the board 17 held after the relevant facts as to holding the office or having the 18 interest come to the person's knowledge. 19 (7) If a director has made a declaration under this section, then unless the 20 board otherwise decides, the director must not-- 21 (a) be present during any deliberation of the board in relation to the 22 matter; or 23 (b) take part in any decision of the board in relation to the matter. 24 (8) For the making of a decision of the board under subsection (7) in 25 relation to a director who has made a declaration under this section, the 26 director must not-- 27 (a) be present during any decision of the board for the purpose of 28 making the decision; or 29 (b) take part in the making by the board of the decision. 30

 


 

s 228 136 s 230 Cooperatives to be recorded in minutes 1 Declarations 228. Every declaration under this division is to be recorded in the 2 minutes of the meeting at which it was made. 3 does not affect other laws or rules 4 Division 229. Except as provided in section 230, this division is in addition to, and 5 does not limit, the operation of a rule of law or a provision in the rules of 6 the cooperative restricting a director from having an interest in contracts 7 with the cooperative or from holding offices or possessing properties 8 involving duties or interests in conflict with his or her duties or interests as 9 director. 10 interests need not be declared 11 Certain 230. The interest in a contract or proposed contract a director is required 12 by this division to declare does not include an interest in-- 13 (a) a contract or proposed contract for a purchase of goods and 14 services by the director from the cooperative; or 15 (b) a lease of land to the director by the cooperative; or 16 (c) a contract or proposed contract for the sale of agricultural 17 products or livestock by the director to the cooperative; or 18 (d) a contract or proposed contract that, under the rules of the 19 cooperative, may be made between the cooperative and a 20 member; or 21 (e) a contract or proposed contract of a class of contracts prescribed 22 under a regulation for this section; 23 but only if the contract is made in good faith, in the ordinary course of the 24 business of the cooperative, and on the terms that are usual and proper in 25 similar dealings between the cooperative and its members. 26

 


 

s 231 137 s 232 Cooperatives 5--Accounts and audit 1 Division of "entity" and "control" 2 Meaning 231. In this division, "entity" and "control" have the same meanings in 3 relation to a cooperative as they have under the Corporations Law in relation 4 to a corporation. 5 for accounts and accounting records 6 Requirements 232.(1) A cooperative must-- 7 (a) keep accounting records and prepare accounts and consolidated 8 accounts as required under a regulation; and 9 (b) ensure the accounts are audited in accordance with a regulation. 10 Maximum penalty--20 penalty units. 11 (2) Without limiting the matters for which a regulation under this section 12 may make provision, a regulation may make provision about the 13 following-- 14 (a) a matter for which provision is made under the Corporations 15 Law, parts 3.6 and 3.7 (including the conferring of jurisdiction on 16 a court); 17 (b) requiring accounts and consolidated accounts to be prepared 18 under accounting standards in force under the Corporations Law, 19 parts 3.6 and 3.7 (with or without changes stated under a 20 regulation); 21 (c) requiring the submission of accounts or consolidated accounts to 22 the Australian Accounting Standards Board; 23 (d) requiring the adoption by a cooperative of the same financial year 24 for each entity the cooperative controls; 25 (e) prescribing the qualifications and the functions of auditors of the 26 accounts of a cooperative and providing for the appointment, the 27 holding of office by, the remuneration of and the removal of 28 auditors; 29 (f) the duties of directors of a cooperative in relation to the 30

 


 

s 233 138 s 235 Cooperatives preparation, auditing and tabling at meetings of members of 1 accounts and consolidated accounts, including the reports to be 2 prepared by directors in relation to the accounts and consolidated 3 accounts; 4 (g) the sending or making available to members of copies of 5 accounts and reports in relation to accounts. 6 (3) A regulation may make provision for a matter for which the 7 Corporations Law makes provision by adopting (with or without changes) 8 provisions of the Corporations Law. 9 of registrar to grant exemptions 10 Power 233.(1) The registrar may, by gazette notice, exempt a cooperative or a 11 director or auditor of a cooperative from compliance with a provision of a 12 regulation made under this part. 13 (2) A gazette notice under this section is subordinate legislation. 14 by directors 15 Disclosure 234. The directors of a cooperative must make the disclosures about the 16 affairs of the cooperative and of an entity the cooperative controls that are 17 required under a regulation. 18 Maximum penalty--20 penalty units. 19 of auditors etc. 20 Protection 235.(1) An auditor of a cooperative has qualified privilege in relation 21 to-- 22 (a) a statement the auditor makes, orally or in writing, in the course 23 of his or her duties as auditor; or 24 (b) the giving of notice, or the sending of a copy of accounts, 25 consolidated accounts or a report, to the registrar under this Act. 26 (2) A person has qualified privilege in relation to-- 27 (a) the publishing of a document prepared by an auditor in the course 28 of the auditor's duties and required under this Act to be filed with 29

 


 

s 236 139 s 237 Cooperatives the registrar, whether or not the document has been so filed; or 1 (b) the publishing of a statement made by an auditor as mentioned in 2 subsection (1). 3 (3) This section does not limit or affect a right, privilege or immunity an 4 auditor or other person has, apart from this section, as defendant in 5 proceedings for defamation. 6 year 7 Financial 236.(1) The financial year of a cooperative is to end on the day in each 8 year that is provided for by the rules of the cooperative. 9 (2) The first financial year of a cooperative may extend from the date of 10 its registration to a date not more than 18 months after its registration. 11 (3) On an alteration of the rules of a cooperative altering its financial year, 12 the alteration may provide either that the financial year current at the date of 13 alteration is to be extended for not more than 6 months or that the financial 14 year next following the financial year that is current is to be a period of 15 more than 1 year but not more than 18 months. 16 6--Registers, records and returns 17 Division to be kept by cooperatives 18 Registers 237.(1) A cooperative must keep the following registers under this 19 section-- 20 (a) a register of members, directors and shares, if any; 21 (b) a register of loans to, securities given by, debentures issued by, 22 and deposits received by the cooperative; 23 (c) a register of names of persons who have given loans or deposits 24 to or hold securities or debentures given or issued by the 25 cooperative; 26 (d) a register of loans made by or guaranteed by the cooperative, and 27 of securities taken by the cooperative; 28

 


 

s 238 140 s 239 Cooperatives (e) a register of memberships cancelled under part 6;54 1 (f) a register of notifiable interests under section 278;55 2 (g) other registers required by regulation. 3 Maximum penalty--20 penalty units. 4 (2) The registers must be kept in the way, and contain the particulars, 5 prescribed under this Act or a regulation. 6 of registers 7 Location 238.(1) A register kept under this division must be kept at-- 8 (a) the cooperative's registered office; or 9 (b) an office at the cooperative's principal place of business; or 10 (c) an office (whether of the cooperative or of someone else) where 11 the work involved in maintaining the register is done; or 12 (d) another office approved by the registrar. 13 (2) The office must be in Queensland. 14 (3) The cooperative must file with the registrar a notice of the address at 15 which the register is kept within 28 days after the register is-- 16 (a) established at an office that is not the cooperative's registered 17 office; or 18 (b) moved from one office to another. 19 of registers etc. 20 Inspection 239.(1) A cooperative must have at the office where the registers are kept 21 and available during all reasonable hours for inspection by a member free of 22 charge the following-- 23 (a) a copy of this Act and the regulations; 24 (b) a copy of the rules of the cooperative and attachments to the rules 25 54 Part 6 (Active membership) 55 Section 278 (Cooperative to keep register)

 


 

s 239 141 s 239 Cooperatives under section 337;56 1 (c) a copy of the minutes of each general meeting of the cooperative; 2 (d) a copy of the last annual report of the cooperative under 3 section 242;57 4 (e) the register of directors, members and shares; 5 (f) the register of names of persons who have given loans or 6 deposits to or hold securities or debentures given or issued by the 7 cooperative; 8 (g) other registers that a regulation may provide are to be open for 9 inspection under this section. 10 (2) If a register is not kept on a computer, the person inspects the register 11 itself. 12 (3) If the register is kept on a computer, the person inspects a hard copy 13 of the information on the register unless the person and the cooperative 14 agree the person can access the information by computer. 15 (4) A member is entitled to make a copy of entries in a register specified 16 in subsection (1) free of charge unless the rules of the cooperative require a 17 fee to be paid, in which case on payment of the required fee. 18 (5) The fee required by the rules must not be more than the fee 19 prescribed under a regulation for a copy of any entry in the register. 20 (6) A cooperative must-- 21 (a) permit a member to inspect a document or make a copy of a 22 document the member may inspect or make under this section; 23 and 24 (b) give the member all reasonable help to inspect the document or 25 make the copy. 26 Maximum penalty--20 penalty units. 27 (7) A cooperative must have, at the place where the registers are kept and 28 available during all reasonable hours for inspection by any person, the 29 56 Section 337 (Copy of order to be attached to rules) 57 Section 242 (Annual report)

 


 

s 240 142 s 241 Cooperatives documents in relation to the cooperative prescribed under a regulation. 1 Maximum penalty--20 penalty units. 2 of information on registers 3 Use 240.(1) A person must not-- 4 (a) use information about a person obtained from a register kept 5 under this division to contact or send material to the person; or 6 (b) disclose information of that kind knowing the information is 7 likely to be used to contact or send material to the person; 8 unless the use or disclosure of the information is-- 9 (c) relevant to the holding of the directorship, membership, shares, 10 loans, securities, debentures or deposits concerned or the exercise 11 of the rights attaching to them; or 12 (d) approved by the board; or 13 (e) necessary to comply with a requirement of this Act. 14 (2) A person who contravenes subsection (1) is liable to compensate 15 anyone else who suffers loss or damage because of the contravention. 16 (3) A person who makes a profit from a contravention of subsection (1) 17 owes a debt to the cooperative. 18 (4) The amount of the debt is the amount of the profit. 19 of appointment etc. of directors and officers 20 Notice 241.(1) A cooperative must give notice to the registrar under this section 21 of the appointment of a person as a director, principal executive officer or 22 secretary of the cooperative or a subsidiary of the cooperative, and of the 23 cessation of the appointment. 24 (2) The notice must-- 25 (a) be in the approved form; and 26 (b) be given within 28 days after the appointment or cessation of 27 appointment; and 28 (c) state the particulars prescribed under a regulation of the 29

 


 

s 242 143 s 243 Cooperatives appointment or cessation of appointment. 1 Maximum penalty--20 penalty units. 2 report 3 Annual 242.(1) A cooperative must send to the registrar within the required 4 period in each year an annual report containing each of the following-- 5 (a) a list in the approved form specifying the directors and the 6 principal executive officers of the cooperative and of each 7 subsidiary of the cooperative, as at the date the annual report is 8 sent to the registrar; 9 (b) a copy of the accounts of the cooperative for its financial year then 10 last past; 11 (c) a copy of the accounts of each subsidiary of the cooperative for 12 the financial year of the subsidiary then last past; 13 (d) a copy of any report by the auditors or directors of the cooperative 14 or subsidiary on the accounts mentioned in paragraphs (b) 15 and (c); 16 (e) the other particulars prescribed under a regulation. 17 Maximum penalty--20 penalty units. 18 (2) For subsection (1), the required period is-- 19 (a) 28 days after the annual general meeting of the cooperative; or 20 (b) if the annual general meeting of the cooperative is not held within 21 the period stated in section 198(2)(a)58--28 days after the end of 22 the period. 23 of members to be provided at request of registrar 24 List 243. A cooperative must, at the written request of the registrar, send to 25 the registrar, within the time and in the way the registrar states, a full list of 26 the members of the cooperative and of each subsidiary of the cooperative, 27 together with the particulars about the members the registrar states in the 28 58 Section 198 (Annual general meetings)

 


 

s 244 144 s 245 Cooperatives request. 1 Maximum penalty--20 penalty units. 2 return to be given at request of registrar 3 Special 244.(1) The registrar may, by written direction, require a cooperative to 4 give the registrar a special return in the form, within the time, and relating to 5 the subject matter, stated by the registrar. 6 (2) The cooperative must comply with a direction under subsection (1). 7 Maximum penalty--20 penalty units. 8 Division 7--Name and registered office 9 to include certain matter 10 Name 245.(1) The name of a cooperative may consist of words, numbers or a 11 combination of both. 12 (2) The name of the cooperative must include the word `cooperative' or 13 the abbreviation `co-op'. 14 (3) The word `limited' or the abbreviation `ltd' must be the last word of 15 the name. 16 (4) A corporation that is formed or incorporated under an Act other than 17 this Act must not register under the other Act by a name including the word 18 `cooperative' or the abbreviation `co-op'. 19 Maximum penalty--20 penalty units. 20 (5) The registrar must not register as the name of a cooperative a name 21 that contains anything a regulation declares is an unsuitable name. 22 (6) Subsection (4) does not apply to-- 23 (a) a society under the Financial Intermediaries Act 1996; or 24 (b) a credit union or foreign society under the Financial Institutions 25 (Queensland) Code; or 26 (c) a corporation that is allowed under another Act to use 27 `cooperative' or the abbreviation `co-op' in its name. 28

 


 

s 246 145 s 247 Cooperatives of abbreviations 1 Use 246. A description of a cooperative is not inadequate or incorrect merely 2 because of 1 or more of the following-- 3 (a) the use of the abbreviation `co-op' instead of the word 4 `cooperative' in the cooperative's name; 5 (b) the use of the abbreviation `ltd' instead of the word `limited' in 6 the cooperative's name; 7 (c) the use of the symbol `&' instead of the word `and' in the 8 cooperative's name; 9 (d) the use of any of the words instead of the corresponding 10 abbreviation or symbol in the cooperative's name; 11 (e) the use of any abbreviation or elaboration of the name of the 12 cooperative that is approved in a particular case or for a particular 13 purpose by the registrar in writing. 14 to appear on business documents etc. 15 Name 247.(1) A cooperative must ensure its name appears in legible 16 characters-- 17 (a) on its seal; and 18 (b) in all notices, advertisements and other official publications of the 19 cooperative; and 20 (c) in all its business documents. 21 Maximum penalty--20 penalty units. 22 (2) An officer of a cooperative or a person on its behalf must not-- 23 (a) use a seal of the cooperative; or 24 (b) issue or authorise the issue of a notice, advertisement or other 25 official publication of the cooperative; or 26 (c) sign or authorise to be signed on behalf of the cooperative a 27 business document of the cooperative; 28 in or on which the cooperative's name does not appear in legible characters. 29 Maximum penalty--20 penalty units. 30

 


 

s 248 146 s 248 Cooperatives (3) A director of a cooperative must not knowingly authorise or permit a 1 contravention of this section. 2 Maximum penalty--20 penalty units. 3 (4) In this section-- 4 "business document", of a cooperative, means a document that is issued, 5 signed or endorsed by or on behalf of the cooperative and is-- 6 (a) a business letter, statement of account, invoice or order for goods 7 or services; or 8 (b) a bill of exchange, promissory note, cheque or other negotiable 9 instrument; or 10 (c) a receipt or letter of credit issued by the cooperative; or 11 (d) a document of a class prescribed under a regulation as a class of 12 business documents. 13 of name of cooperative 14 Change 248.(1) A cooperative may by special resolution change its name to a 15 name approved by the registrar. 16 (2) A change of name must be advertised as prescribed under a 17 regulation. 18 (3) A change of name does not take effect until-- 19 (a) the registrar has noted the change on the certificate of registration 20 of the cooperative; or 21 (b) the certificate of registration is surrendered to the registrar and a 22 replacement certificate of registration is issued in the new name. 23 (4) A change of name by a cooperative does not affect-- 24 (a) the identity of the cooperative; or 25 (b) the exercise of a right, or the enforcement of an obligation, by or 26 against the cooperative or a person; or 27 (c) the continuation of a legal proceeding by or against the 28 cooperative. 29 (5) A legal proceeding that might have been continued or started by or 30

 


 

s 249 147 s 250 Cooperatives against the cooperative in its former name may be continued or started by or 1 against the cooperative in its new name. 2 (6) The registrar may refuse to approve a change of name if the registrar 3 thinks the new name is unsuitable. 4 (7) The registrar may direct a cooperative to change its name if the 5 registrar considers the name is likely to be confused with the name of a 6 corporation or a registered business name. 7 office of cooperative 8 Registered 249.(1) A cooperative must have a registered office. 9 Maximum penalty--20 penalty units. 10 (2) A cooperative must, at the premises of its registered office, publicly 11 and conspicuously display a notice stating the name of the cooperative and 12 identifying the premises as its registered office. 13 Maximum penalty--20 penalty units. 14 (3) Within 28 days after changing the address of its registered office, a 15 cooperative must give the registrar written notice of the new address. 16 Maximum penalty--20 penalty units. 17 PART 10--FUNDS AND PROPERTY 18 Division 1--Power to raise money 19 of obtaining financial accommodation 20 Meaning 250. A reference in this division to the obtaining of financial 21 accommodation includes a reference to the obtaining of credit and the 22 borrowing or raising of money by any means. 23

 


 

s 251 148 s 254 Cooperatives raising to be in accordance with Act and regulations 1 Fund 251. A regulation may impose requirements and restrictions on the 2 obtaining of financial accommodation and the giving of security for 3 obtaining financial accommodation by a cooperative. 4 on deposit taking 5 Limits 252. A cooperative must not accept money on deposit unless-- 6 (a) the cooperative was authorised by its rules immediately before the 7 commencement of this section to accept money on deposit; or 8 (b) the cooperative was a deposit-taking corporation immediately 9 before it became a cooperative and it is authorised by its rules to 10 accept money on deposit; or 11 (c) for a merged cooperative--1 or more of the cooperatives 12 involved in the merger was a deposit-taking cooperative 13 immediately before the registration of the merged cooperative and 14 the merged cooperative is authorised by its rules to accept money 15 on deposit. 16 etc. not required to see to application of money 17 Members 253. A member or other person from whom a cooperative obtains 18 financial accommodation is not required to see to its application and is not 19 affected or prejudiced by the fact that in doing so the cooperative 20 contravened a provision of this Act or the rules of the cooperative. 21 directions about fundraising 22 Registrar's 254.(1) The registrar may, by written notice served on a cooperative, give 23 a direction to the cooperative as to the way in which it is to exercise its 24 functions in relation to the activities of the cooperative in obtaining financial 25 accommodation. 26 (2) A direction under subsection (1) may make provision for 1 or more 27 of the following matters-- 28 (a) requiring the cooperative to stop obtaining financial 29 accommodation or to stop obtaining financial accommodation in 30

 


 

s 255 149 s 256 Cooperatives a particular way; 1 (b) requiring the cooperative to repay in accordance with the direction 2 all or part of financial accommodation obtained; 3 (c) requiring the cooperative to refinance in a stated way financial 4 accommodation repaid in accordance with the registrar's 5 direction; 6 (d) the way in which the cooperative is permitted to invest or use the 7 proceeds of financial accommodation it obtains. 8 debt 9 Subordinated 255.(1) A cooperative may incur subordinated debt. 10 (2) Subordinated debt is debt incurred under an agreement under which, 11 in the event of the winding-up of the cooperative, a claim of the creditor 12 against the cooperative for the debt is to rank in priority-- 13 (a) equally with the claim of another creditor who is a party to a 14 similar agreement; and 15 (b) except as provided by paragraph (a)--after the claims of another 16 creditor of the cooperative and before the claims of members to 17 repayment of share capital in the cooperative. 18 (3) An agreement mentioned in subsection (1) has effect despite the 19 provisions of the Corporations Law, part 5.6, division 6 (as adopted under 20 part 12, division 359 of this Act). 21 of Corporations Law to issues of debentures 22 Application 256.(1) The provisions of the Corporations Law parts 1.2A, 7.11 23 and 7.12 are adopted by this section and apply to debentures of a 24 cooperative. 25 (2) The provisions apply with the changes prescribed under a regulation 26 and as if-- 27 (a) a cooperative were a company; and 28 59 Part 12, division 3 (Winding-up)

 


 

s 257 150 s 257 Cooperatives (b) a reference in the provisions to a corporation included a 1 cooperative; and 2 (c) a reference in the provisions to the Commission were a reference 3 to the registrar. 4 (3) The provisions of the Corporations Law adopted by this section do 5 not apply to a loan to which section 26060 applies. 6 (4) The provisions of the Corporations Law adopted by this section do 7 not apply to an issue of debentures of a cooperative made-- 8 (a) solely to members; or 9 (b) solely to members and employees of the cooperative; or 10 (c) to a person who on becoming an inactive member of the 11 cooperative has had his or her share capital converted to debt. 12 (5) Expressions used in this section that are not defined in this Act have 13 the same meaning as in the Corporations Law. 14 (6) The registrar may, by gazette notice, exempt a cooperative from a 15 requirement of the Corporations Law adopted by this section. 16 (7) A gazette notice under subsection (6) is subordinate legislation. 17 statement 18 Disclosure 257.(1) This section applies to the issue of debentures of a cooperative if 19 the issue is made-- 20 (a) solely to members; or 21 (b) solely to members and employees of the cooperative. 22 (2) Before issuing to the person debentures to which this section applies, 23 a cooperative must give the person a disclosure statement, approved by the 24 registrar, and containing the information that is reasonably necessary to 25 enable a person to make an informed assessment of the financial prospects 26 of the cooperative, including-- 27 (a) the purpose for which the money raised by the cooperative by the 28 issue of debentures is to be used; and 29 60 Section 260 (Compulsory loan by member to cooperative)

 


 

s 258 151 s 260 Cooperatives (b) the rights and liabilities attaching to the debentures; and 1 (c) the financial position of the cooperative; and 2 (d) the interests of the directors of the cooperative in the issue of the 3 debentures; and 4 (e) compensation or consideration to be paid to officers or members 5 of the cooperative in connection with the issue of debentures; and 6 (f) other matters the registrar directs. 7 (3) Sections 17 (except subsection (2)) and 29 61 apply to the approval of 8 a disclosure statement under this section with necessary changes and, in 9 particular, as if reference in section 17 to a formation meeting were a 10 reference to the issue of debentures. 11 of board for transfer of debentures 12 Approval 258. A debenture of a cooperative can not be sold or transferred except 13 with the consent of the board and under the rules of the cooperative. 14 of Corporations Law--reissue of redeemed debentures 15 Application 259. The Corporations Law, section 1051 is adopted by this section and 16 applies in relation to debentures issued by a cooperative to any of its 17 members as if a cooperative were a company. 18 loan by member to cooperative 19 Compulsory 260.(1) If authorised by the rules of the cooperative, the cooperative may 20 require its members to lend money, with or without security, to the 21 cooperative, in accordance with a proposal approved by special resolution of 22 the cooperative. 23 (2) The proposal must not require a loan to be for a term of more than 24 7 years or a shorter or longer term prescribed under a regulation. 25 (3) The proposal must-- 26 61 Section 17 (Approval of disclosure statement) and 29 (Appeal against refusal to approve disclosure statement)

 


 

s 260 152 s 260 Cooperatives (a) be accompanied by a disclosure statement, approved by the 1 registrar, explaining the purpose for which the money raised by 2 the cooperative under the proposal is to be used and including the 3 other information the registrar directs; and 4 (b) clearly show the total amount of the loan to be raised by the 5 cooperative and the basis on which the money required to be lent 6 by each member is to be calculated; and 7 (c) be accompanied by a statement informing the member that the 8 member may inform the board by notice on or before the date 9 stated in the statement (being a date before the passing of the 10 special resolution) that the member resigns on the passing of the 11 special resolution. 12 (4) If the proposal allows, the board of the cooperative may, under the 13 terms of the proposal, deduct the money required to be lent by a member to 14 the cooperative from money payable from the cooperative to the member 15 for his or her dealings with the cooperative. 16 (5) A proposal to deduct money mentioned in subsection (4) must, in 17 addition, clearly show-- 18 (a) the basis on which the money is to be deducted; and 19 (b) the time and way of making the deductions. 20 (6) When approved, the proposal is binding on-- 21 (a) all members of the cooperative at the date of passing of the 22 special resolution, other than a member who has given a notice of 23 resignation under subsection (3)(c); and 24 (b) all persons who become members of the cooperative after the 25 date and before the total amount of the loan to be raised under the 26 proposal has been raised. 27 (7) Sections 17 (except subsection (2)) and 29 62 apply to the approval of 28 a disclosure statement under this section with necessary changes and, in 29 particular, as if a reference in section 17 to a formation meeting were a 30 reference to the special resolution. 31 62 Section 17 (Approval of disclosure statement) and 29 (Appeal against refusal to approve disclosure statement)

 


 

s 261 153 s 262 Cooperatives payable on compulsory loan 1 Interest 261.(1) The rate of interest payable by a cooperative for a loan under 2 section 260 during a period is-- 3 (a) for a cooperative with share capital-- 4 (i) the rate (or, if there is more than 1 rate, the higher or highest 5 rate) of dividend payable for the period on the share capital 6 of the cooperative; or 7 (ii) if the rate of dividend payable for the period has not been 8 decided--the rate (or the higher or highest rate) payable for 9 the immediately preceding period for which a rate has been 10 decided; or 11 (iii) if a rate of dividend has never been decided for the share 12 capital of the cooperative--the rate the board of the 13 cooperative considers reasonable; or 14 (b) for a cooperative without share capital--the rate the board of the 15 cooperative considers reasonable; or 16 (c) if the rules provide for a rate to be payable that is higher than the 17 rate applicable under paragraph (a) or (b)--the higher rate. 18 (2) A member may agree to the rate of interest being less than what 19 would otherwise be payable under this section and may agree to no interest 20 being paid. 21 2--Charges 22 Division of charges 23 Registration 262. Schedule 363 has effect but does not apply to-- 24 (a) a mortgage, charge or encumbrance that is over specific land and 25 is registered under the Land Title Act 1994 or a memorandum 26 that has been registered under the Property Law Act 1974; or 27 63 Schedule 3 (Registration etc. of charges)

 


 

s 263 154 s 266 Cooperatives (b) a mortgage, charge or encumbrance registered under a law 1 relating to mining. 2 3--Receivers and other controllers of property of cooperatives 3 Division and other controllers of property of cooperatives 4 Receivers 263. Schedule 464 has effect. 5 Division 4--Disposal of surplus from activities 6 of surplus for benefit of cooperative 7 Retention 264. The board of a cooperative may resolve to retain all or part of the 8 surplus arising in a year from the business of the cooperative to be applied 9 for the benefit of the cooperative. 10 for charitable purposes or members' purposes 11 Application 265.(1) The rules of a cooperative may authorise the cooperative to apply 12 a part of the surplus arising in a year from the business of the cooperative 13 for any charitable purpose. 14 (2) The rules of a trading cooperative may authorise the cooperative to 15 apply a part of the surplus arising in a year from the business of the 16 cooperative for supporting an activity approved by the cooperative. 17 (3) The rules must limit the amount that may be applied under 18 subsection (1) or (2) to a stated proportion of the surplus. 19 (4) A cooperative may apply part of the surplus for a purpose and to the 20 extent authorised by rules under subsection (1) or (2). 21 of surplus or reserves to members 22 Distribution 266.(1) The rules of a trading cooperative may authorise the cooperative 23 64 Schedule 4 (Receivers, and other controllers, of property of cooperatives)

 


 

s 267 155 s 268 Cooperatives to apply a part of the surplus arising in a year from the business of the 1 cooperative or a part of the reserves of the cooperative by-- 2 (a) distribution to members as a rebate on the basis of business done 3 with the cooperative; or 4 (b) the issue of bonus shares to members; or 5 (c) the issue to members of a limited dividend. 6 (2) The amount of a rebate or dividend payable to a member under 7 subsection (1)(a) or (c) may, with the consent of the member, be applied-- 8 (a) in payment for the issue to the member of bonus shares; or 9 (b) as a loan to the cooperative. 10 (3) In this section-- 11 "limited dividend" means a dividend that is not more than the amount 12 prescribed under a regulation. 13 of surplus to other persons 14 Application 267.(1) If authorised by its rules, part of the surplus arising in a year 15 from the business of a trading cooperative may be credited to a person who 16 is not a member, but is qualified to be a member, by way of rebate in 17 proportion to the business done by him or her with the cooperative, if-- 18 (a) the person was a member when the business was done and the 19 membership has lapsed; or 20 (b) the person has applied for membership after the business was 21 done. 22 (2) Nothing in this section precludes the payment of a bonus to an 23 employee under the terms of his or her employment. 24 5--Acquisition and disposal of assets 25 Division and disposal of assets 26 Acquisition 268.(1) A cooperative must not do any of the following things except as 27 approved by special resolution by a special postal ballot-- 28

 


 

s 268 156 s 268 Cooperatives (a) sell or lease as a going concern, the undertaking of the cooperative 1 or a part of the undertaking relating to its primary activities, the 2 value of which represents 5% or more of the total value of the 3 undertaking; 4 (b) acquire from or dispose of to a director or employee of the 5 cooperative, or a relative (within the meaning of the Corporations 6 Law) of a director or employee of the cooperative or of the 7 spouse of a director or employee of the cooperative, property the 8 value of which represents 5% or more of the total value of all the 9 assets of the cooperative relating to its primary activities; 10 (c) acquire an asset the value of which represents 5% or more of the 11 total value of the assets of the cooperative, if the acquisition 12 would result in the cooperative commencing to carry on an 13 activity that is not 1 of its primary activities; 14 (d) dispose of an asset, if the disposal would result in the cooperative 15 ceasing to carry on a primary activity of the cooperative, or in the 16 ability of the cooperative to carry on a primary activity of the 17 cooperative being substantially impaired, either generally or in a 18 particular geographical region. 19 Maximum penalty--60 penalty units. 20 (2) If a cooperative contravenes this section, each person who is a 21 member of the board of the cooperative is taken to have committed the 22 offence, unless the person satisfies the court that he or she used all proper 23 diligence to prevent the contravention by the cooperative. 24 (3) The registrar may, by gazette notice, exempt a cooperative from 25 compliance with a provision of this section and section 19465 in relation to a 26 matter to which this section applies. 27 (4) A gazette notice under subsection (3) is subordinate legislation. 28 65 Section 194 (Special postal ballots)

 


 

s 269 157 s 271 Cooperatives PART 11--RESTRICTIONS ON THE ACQUISITION 1 OF INTERESTS IN COOPERATIVES 2 1--Restrictions on share and voting interests 3 Division of part 4 Application 269. This part applies to trading cooperatives. 5 required to be given of voting interest 6 Notice 270.(1) A person (whether or not a member of the cooperative) must 7 give notice to a cooperative within 5 business days after becoming aware 8 the person has a relevant interest in the right to vote of a member of the 9 cooperative. 10 Maximum penalty--20 penalty units. 11 (2) A person (whether or not a member of the cooperative) who has 12 ceased to have a relevant interest in the right to vote of a member of a 13 cooperative must give notice to the cooperative within 5 business days after 14 becoming aware of the fact. 15 Maximum penalty--20 penalty units. 16 (3) Section 18066 provides for the effect of a person having a relevant 17 interest in the right to vote of a member of a cooperative. 18 required to be given of substantial share interest 19 Notice 271.(1) A person must give notice to a cooperative within 5 business 20 days after becoming aware the person has a substantial share interest in the 21 cooperative. 22 Maximum penalty--20 penalty units. 23 (2) A person who has a substantial share interest in a cooperative must 24 give notice to the cooperative within 5 business days after becoming aware 25 66 Section 180 (Effect of relevant share and voting interests on voting rights)

 


 

s 272 158 s 273 Cooperatives a substantial change has occurred in the share interest. 1 Maximum penalty--20 penalty units. 2 (3) A person who has ceased to have a substantial share interest in a 3 cooperative must give notice to the cooperative within 5 business days after 4 becoming aware the person has ceased to have the interest. 5 Maximum penalty--20 penalty units. 6 (4) A person has a "substantial share interest" in a cooperative if the 7 nominal value of the shares in the cooperative in which the person has a 8 relevant interest represents 5% or more of the nominal value of the issued 9 share capital of the cooperative. 10 (5) A "substantial change" takes place in a person's share interest in a 11 cooperative if there is an increase or decrease in the number of shares in the 12 cooperative in which the person has a relevant interest and the increase or 13 decrease represents at least 1% of the nominal value of the issued share 14 capital of the cooperative. 15 for notices 16 Requirements 272. A notice required under this division must-- 17 (a) be in the approved form; and 18 (b) state the particulars prescribed under a regulation of the interest or 19 change being notified. 20 permissible level of share interest 21 Maximum 273.(1) A person must not have a relevant interest in shares of a 22 cooperative the nominal value of which is more than 20% of the nominal 23 value of the issued share capital of the cooperative. 24 (2) The registrar, by gazette notice, may state a maximum greater than 25 20% as the maximum for subsection (1) for a particular person or 26 cooperative. 27 28 Example for subsection (2)-- 29 An association or federation may not have enough members to allow each 30 member to comply with subsection (1).

 


 

s 274 159 s 275 Cooperatives (3) A gazette notice under subsection (2) is subordinate legislation. 1 (4) The maximum of 20% stated by subsection (1) may be increased for 2 a particular person by special resolution of the cooperative concerned passed 3 by a special postal ballot. 4 (5) A resolution under subsection (4) does not have effect unless-- 5 (a) it is approved by the registrar; or 6 (b) the person concerned is another cooperative. 7 to be forfeited to remedy contravention 8 Shares 274.(1) If a person has a relevant interest in a share of a cooperative in 9 contravention of this division, the board of the cooperative must declare to 10 be forfeited enough of the shares in which the person has a relevant interest 11 to remedy the contravention. 12 (2) The shares to be forfeited are-- 13 (a) the shares nominated by the person for the purpose; or 14 (b) in the absence of that nomination, the shares in which the person 15 has had a relevant interest for the shortest time. 16 (3) A declaration of the board that shares are forfeited operates to forfeit 17 the shares concerned. 18 (4) Sections 132 to 13467 apply to shares forfeited under this section as if 19 the shares had been forfeited under part 6.68 20 of board in response to suspected contravention 21 Powers 275.(1) If the board of a cooperative is satisfied on reasonable grounds a 22 person has contravened section 27069 in relation to the cooperative, the 23 board may do either or both of the following-- 24 (a) refuse to register a share transfer involving the person; 25 67 Section 132 (Repayment of amounts owing because of cancelled membership) to 134 (Repayment of deposits and debentures) 68 Part 6 (Active membership) 69 Section 270 (Notice required to be given of voting interest)

 


 

s 276 160 s 276 Cooperatives (b) suspend a stated right or entitlement a person has as a member of 1 the cooperative or attaching to any shares of the cooperative in 2 which the person has a relevant interest. 3 (2) The board may ask a person who it suspects has a relevant interest in 4 shares of the cooperative to give stated information to the board about the 5 interest. 6 (3) A failure by a person to comply with a request under subsection (2) 7 is a reasonable ground for being satisfied the person has contravened 8 section 270. 9 of Supreme Court about contravention 10 Powers 276.(1) If a person has contravened section 27070 in relation to a 11 cooperative, the Supreme Court may, on the application of the cooperative 12 or the registrar, make any order it considers appropriate. 13 (2) Without limiting subsection (1), an order may include-- 14 (a) a remedial order; and 15 (b) for securing compliance with any other order made under this 16 section--an order directing the cooperative or another person to 17 do or refrain from doing a stated act. 18 (3) An order may be made whether or not the contravention continues. 19 (4) Proof to the satisfaction of the Supreme Court at the hearing of an 20 application that-- 21 (a) a person has a relevant interest in a share of a cooperative because 22 an associate of the person has a relevant interest in a share; and 23 (b) the associate became entitled to the relevant interest within 24 6 months before the application was filed with the court; 25 is evidence that the associate was an associate of the person from the time 26 the person first had the relevant interest until the date of the hearing. 27 70 Section 270 (Notice required to be given of voting interest)

 


 

s 277 161 s 279 Cooperatives to inform registrar of interest over 20% 1 Cooperative 277.(1) A cooperative must inform the registrar in writing within 2 14 days after the board becomes aware-- 3 (a) a particular person has a relevant interest in shares of the 4 cooperative the nominal value of which is more than 20% of the 5 nominal value of the issued share capital of the cooperative; or 6 (b) there has been a change in the number of shares in which a 7 person mentioned in paragraph (a) holds a relevant interest. 8 (2) The notification must give details of the relevant interest or change 9 concerned. 10 to keep register 11 Cooperative 278.(1) A cooperative must keep a register of notifiable interests. 12 (2) The cooperative must enter in the register in alphabetical order the 13 names of persons from whom the cooperative has received a notice under 14 this division together with the information contained in the notice. 15 (3) The register must be open for inspection-- 16 (a) by a member of the cooperative free of charge; and 17 (b) by another person on payment of the fee, if any, the cooperative 18 may require, not more than the maximum fee prescribed under a 19 regulation. 20 companies to provide list of shareholders etc. 21 Unlisted 279.(1) This section applies to a company (within the meaning of the 22 Corporations Law) that is not a listed corporation (within the meaning of the 23 Corporations Law). 24 (2) A company to which this section applies that is a member of a 25 cooperative must give the cooperative a list showing-- 26 (a) the name of each member of the company as at the end of the 27 financial year of the company and the number of shares in the 28 company held by each member; and 29 (b) the name of each person who has a relevant interest (within the 30

 


 

s 280 162 s 281 Cooperatives meaning of the Corporations Law) in a share of the company 1 together with details of the interest; and 2 (c) the name of each person who is an associate (within the meaning 3 of the Corporations Law) of the company. 4 (3) A list under subsection (2) must be given within 28 days after the end 5 of each financial year of the company and within 28 days after a written 6 request for the list is made to the company by the registrar. 7 (4) The details to be shown on the list are the details as at the end of the 8 financial year concerned or, if the list is given at the request of the registrar, 9 as at the date stated in the request. 10 (5) The registrar may make a request under subsection (3) at any time, 11 but only if the registrar considers the company is or may be involved in a 12 suspected contravention of a provision of this division. 13 share interest not to affect loan liability 14 Excess 280.(1) This section applies if a cooperative has made a loan to a 15 member and the member had or has a relevant interest in shares of the 16 cooperative in contravention of this division. 17 (2) Until the amount lent to the member has been repaid to the 18 cooperative (with the interest payable), the member is liable to make to the 19 cooperative the payments the member would be liable to make if all the 20 shares concerned were lawfully held by the member. 21 (3) Security for the repayment of the loan is not affected by a 22 contravention of this division. 23 of operation of division 24 Extent 281. This division-- 25 (a) applies to all individuals, whether resident in Queensland or in 26 Australia or not and whether Australian citizens or not, and to all 27 bodies corporate or unincorporated, whether incorporated or 28 carrying on business in the State or in Australia or not; and 29 (b) extends to acts done or omitted to be done outside the State, 30 whether in Australia or not. 31

 


 

s 282 163 s 283 Cooperatives may grant exemption from division 1 Registrar 282.(1) The registrar may, by gazette notice, exempt a person from the 2 operation of this division. 3 (2) A gazette notice under this section is subordinate legislation. 4 2--Restrictions on certain share offers 5 Division offers to which division applies 6 Share 283.(1) This division applies to the following offers to purchase shares in 7 a cooperative-- 8 (a) an offer made as part of a proposal for, or that is conditional on, 9 the sale of the undertaking or part of the undertaking, as a going 10 concern, of the cooperative; 11 (b) an offer made as part of a proposal for, or that is conditional on, 12 the registration of the cooperative as a company under the 13 Corporations Law; 14 (c) an offer made as part of a proposal for, or that is conditional on, 15 the winding-up of the cooperative; 16 (d) an offer that would result in a contravention of section 27371 were 17 the offerer to be registered (immediately after the offer is made) 18 as the holder of the shares that are the subject of the offer; 19 (e) an offer that would lead to the offerer having a substantial share 20 interest in the cooperative, or to a substantial change taking place 21 in a substantial share interest the offerer has in the cooperative, 22 were the offerer to be registered (immediately after the offer is 23 made) as the holder of the shares that are the subject of the offer. 24 (2) In subsection (1)(e), "substantial share interest" and "substantial 25 change" have the same meanings as they have in section 271.72 26 71 Section 273 (Maximum permissible level of share interest) 72 Section 271 (Notice required to be given of substantial share interest)

 


 

s 284 164 s 286 Cooperatives to be satisfied before offer can be made 1 Requirements 284.(1) A person must not make an offer to which this division applies 2 unless the making of the offer has been approved-- 3 (a) by special resolution by a special postal ballot; and 4 (b) by the registrar. 5 (2) Despite subsection (1), an offer mentioned in section 283(1)(e) can 6 be made even if it has not been approved as mentioned in subsection (1) if it 7 is made, in circumstances stated in, and in accordance with the requirements 8 of, a regulation. 9 offers totally prohibited if they discriminate 10 Some 285. An offer mentioned in section 283(1)(a) to (d)73 must not be made 11 at all if it operates or would operate to discriminate between members who 12 are active members and members who are not active members. 13 to be submitted to board first 14 Offers 286.(1) A proposal to make an offer to which this division applies must 15 in the first instance be submitted to the board of the cooperative. 16 (2) The board may decline to put a proposed offer to a special postal 17 ballot unless arrangements satisfactory to the board have been made for 18 payment to the cooperative of the expenses involved in holding the ballot. 19 (3) The board may require payment in advance under subsection (2). 20 (4) A requisition for a special postal ballot for this division can not be 21 served unless the board has had a reasonable opportunity to consider the 22 proposed offer concerned. 23 (5) A period of 28 days is a reasonable opportunity for considering a 24 proposed offer but the registrar may extend the period in a particular case, 25 whether before or after the end of the 28 days, by written notice to the 26 cooperative. 27 73 Section 283 (Share offers to which division applies)

 


 

s 287 165 s 287 Cooperatives of proposed takeovers about proposed company 1 Announcements 287.(1) This section applies to an offer to purchase shares in a 2 cooperative made as part of a proposal for, or that is conditional on, the 3 registration of the cooperative as a company (the "proposed company") 4 under the Corporations Law. 5 (2) A person must not make a public announcement to the effect the 6 person proposes, or the person and another person or other persons together 7 propose, to make takeover offers, or to cause a takeover announcement to 8 be made, in relation to the proposed company if-- 9 (a) the person knows the announcement is false or is recklessly 10 indifferent as to whether it is true or false; or 11 (b) the person has no reasonable grounds for believing the person, or 12 the person and the other person or persons, will be able to 13 perform obligations arising under the scheme or announcement 14 or under the Corporations Law in relation to the scheme or 15 announcement if a substantial proportion of the offers or the 16 offers made under the announcement are accepted. 17 Maximum penalty--200 penalty units or 5 years imprisonment. 18 (3) If a person makes a public announcement to the effect the person 19 proposes, or the person and another person or other persons together 20 propose, to make a takeover bid in relation to the proposed company, the 21 person must proceed to make a takeover bid in relation to shares in the 22 company in accordance with the public announcement within 2 months 23 after the day on which the company is incorporated. 24 Maximum penalty--100 penalty units or 2 years imprisonment. 25 (4) A person is not liable to be convicted of more than 1 offence under 26 subsection (3) for any 1 public announcement. 27 (5) A person who contravenes this section (whether or not the person is 28 convicted of an offence for the contravention) is liable to pay compensation 29 to a person who suffered loss because of entering into a share transaction in 30 reliance on the public announcement concerned. 31 (6) The amount of the compensation is the difference between the price 32 of the shares at which the transaction was entered into and the price of the 33 shares at which the transaction would have been likely to have been entered 34 into if the person had not made the public announcement. 35

 


 

s 288 166 s 289 Cooperatives (7) A person does not contravene subsection (3) and is not liable to pay 1 compensation for the contravention if it is proved the person could not 2 reasonably have been expected to make the takeover bid concerned-- 3 (a) because of circumstances that existed when the public 4 announcement was made but of which the person had no 5 knowledge and could not reasonably have been expected to have 6 knowledge; or 7 (b) because of a change in circumstances after the announcement was 8 made, other than a change in circumstances caused directly or 9 indirectly by the person. 10 (8) Expressions used in this section have the same meanings as in the 11 Corporations Law, section 746. 12 disclosure requirements for offers involving conversion to 13 Additional company 14 288. If an offer is part of a proposal for, or is conditional on, the 15 registration of the cooperative as a company under the Corporations Law, 16 the disclosure statement required to be sent to members for the special 17 postal ballot must contain the following additional information-- 18 (a) full particulars of any proposal by which a director will acquire a 19 relevant interest in a share of the company to be formed; 20 (b) other information that is material to the making of a decision by a 21 member whether or not to agree to the making of the offer, being 22 information that is within the knowledge of the directors and has 23 not previously been disclosed to the members; 24 (c) other information the registrar directs. 25 of prohibited offer 26 Consequences 289.(1) If a person makes an offer to purchase shares in a cooperative in 27 contravention of this division-- 28 (a) the person can not be registered as the holder of the shares 29 concerned; and 30 (b) if the transfer of the shares is registered--the person can not vote 31

 


 

s 290 167 s 293 Cooperatives at a meeting of the cooperative. 1 (2) A vote cast by or for a member when the member can not vote 2 because of this section must be disregarded. 3 may grant exemptions 4 Registrar 290.(1) The registrar may, by gazette notice, exempt a cooperative from 5 compliance with a provision of this division and section 19474 in relation to 6 a matter to which this division applies. 7 (2) A gazette notice under subsection (1) is subordinate legislation. 8 ART 12--MERGER, TRANSFER OF 9 P ENGAGEMENTS, WINDING-UP 10 Division 1--Mergers and transfers of engagements 11 of division 12 Application 291. This division does not apply to a merger or transfer of engagements 13 to which part 1475 applies. 14 and transfers of engagements of local cooperatives 15 Mergers 292. Any 2 or more cooperatives may consolidate all or any of their 16 assets, liabilities and undertakings by way of merger or transfer of 17 engagements approved under this division. 18 before application can be made 19 Requirements 293.(1) Before cooperatives can apply for approval under this division of 20 74 Section 194 (Special postal ballots) 75 Part 14 (Foreign cooperatives)

 


 

s 294 168 s 294 Cooperatives a merger or transfer of engagements, the proposed merger or transfer must 1 have been approved by each of the cooperatives by-- 2 (a) a special resolution passed by a special postal ballot; or 3 (b) if permitted by subsection (2)--a resolution of the board of the 4 cooperative. 5 (2) The proposed merger or transfer of engagements may be approved 6 by resolution of the board of a cooperative if the registrar consents to the 7 procedure applying in the particular case. 8 statement required 9 Disclosure 294.(1) A resolution of a cooperative is not effective for this division 10 unless this section has been complied with. 11 (2) Each cooperative must send to each of its members a disclosure 12 statement approved by the registrar stating-- 13 (a) the financial position of each cooperative concerned in the 14 proposed merger or transfer of engagements as shown in 15 financial statements prepared as at a date not more than 6 months 16 before the date of the statement; and 17 (b) any interest any officer of each cooperative has in the proposed 18 merger or transfer of engagements; and 19 (c) compensation or other consideration proposed to be paid, or other 20 incentive proposed to be given, to any officer or member of each 21 cooperative in relation to the proposed merger or transfer of 22 engagements; and 23 (d) whether the proposal is a merger or transfer of engagements and 24 the reason for the merger or transfer or engagements; and 25 (e) for a transfer of engagements--whether it is a total or partial 26 transfer of engagements; and 27 (f) other information the registrar directs. 28 (3) The disclosure statement must be sent to the members of each 29 cooperative so that it will, in the ordinary course of post, reach each 30 member who is entitled to vote on the special resolution no later than 31 21 days before the day on or before which the ballot papers must be 32

 


 

s 295 169 s 296 Cooperatives returned by members voting in the special postal ballot. 1 (4) The registrar may, by gazette notice, exempt a cooperative from 2 complying with this section. 3 (5) A gazette notice under subsection (4) is subordinate legislation. 4 (6) The registrar may approve a disclosure statement on any conditions 5 he or she considers appropriate. 6 an application 7 Making 295.(1) An application for approval of a merger or transfer of 8 engagements under this division must be made to the registrar in the 9 approved form. 10 (2) An application for approval of a merger must be accompanied by 11 2 copies of the proposed rules of the merged cooperative and other 12 particulars required by the registrar. 13 of merger 14 Approval 296.(1) The registrar must approve a merger under an application under 15 this division if satisfied-- 16 (a) this division has been complied with in relation to the application; 17 and 18 (b) the proposed rules of the merged cooperative are consistent with 19 this Act and may reasonably be approved; and 20 (c) the certificates of registration of the cooperatives have been 21 surrendered to the registrar; and 22 (d) there is no good reason why the merged cooperative and its rules 23 should not be registered. 24 (2) On approving an application for merger, the registrar must-- 25 (a) cancel the registration of the cooperatives involved in the merger; 26 and 27 (b) register the merged cooperative and its rules; and 28 (c) issue to the merged cooperative a certificate of registration under 29

 


 

s 297 170 s 298 Cooperatives this Act. 1 (3) A merger takes effect on the issue of the certificate of registration for 2 the merged cooperative. 3 of transfer of engagements 4 Approval 297.(1) The registrar must approve a transfer of engagements under an 5 application under this division if satisfied-- 6 (a) this division has been complied with in relation to the application; 7 and 8 (b) the rules or proposed rules of the transferee cooperative are 9 adequate; and 10 (c) for a total transfer of engagements from a cooperative--the 11 certificate of registration of the cooperative has been surrendered 12 to the registrar; and 13 (d) there is no good reason why the transfer of engagements should 14 not take effect. 15 (2) A transfer of engagements takes effect on the day stated in the 16 approval of the registrar. 17 of engagements by direction of registrar 18 Transfer 298.(1) The registrar may, with the approval of the Minister, direct a 19 cooperative-- 20 (a) to transfer its engagements to a cooperative approved by the 21 registrar; and 22 (b) within a period fixed by the registrar when giving the direction, or 23 the further period the registrar allows, to enter into an agreement 24 approved by the registrar to give effect to the transfer of 25 engagements directed. 26 (2) The registrar must not give the direction to a cooperative unless the 27 necessary grounds exist for giving the direction, as mentioned in 28

 


 

s 299 171 s 299 Cooperatives section 328.76 1 (3) The transfer of engagements must make provision in a way approved 2 by the registrar for the members of the transferor cooperative who wish to 3 do so to become members of the transferee cooperative. 4 (4) If a cooperative fails to comply with a direction under this section, the 5 registrar may elect to treat the failure as the necessary grounds-- 6 (a) for winding-up the cooperative on a certificate of the registrar; or 7 (b) for appointing an administrator of the cooperative. 8 (5) The registrar must notify the cooperative of the registrar's decision 9 under subsection (4). 10 (6) The registrar may revoke a direction under this section at any time up 11 until the cooperative has agreed under the direction to transfer its 12 engagements. 13 (7) A transfer of engagements directed under this section takes effect on 14 a day notified by the registrar in the gazette. 15 (8) An officer of a cooperative must not-- 16 (a) fail to take all reasonable steps to secure compliance by the 17 cooperative with a direction given under this section; or 18 (b) by a wilful act or omission be the cause of a failure by the 19 cooperative to comply with a direction given under this section. 20 Maximum penalty--20 penalty units. 21 Division 2--Transfer of incorporation 22 of "new body" and "transfer" 23 Meaning 299. The registration or incorporation of a cooperative as a corporation 24 because of an application under this division is referred to in this division as 25 its "transfer" and the corporation concerned is referred to in this division 26 as "the new body". 27 76 Section 328 (Grounds for winding-up, transfer of engagements, appointment of administrator)

 


 

s 300 172 s 301 Cooperatives for transfer 1 Application 300. A cooperative, if approved under this division, may apply to 2 become registered or incorporated as 1 of the following bodies corporate-- 3 (a) a company under the Corporations Law; 4 (b) an incorporated association under the Associations Incorporation 5 Act 1981; 6 (c) a building society under the Financial Institutions (Queensland) 7 Code; 8 (d) a credit union under the Financial Institutions (Queensland) Code; 9 (e) a friendly society under the Friendly Societies Act 1991; 10 (f) a cooperative housing society under the Financial Intermediaries 11 Act 1996; 12 (g) a corporation that is incorporated, registered or otherwise 13 established under a law that is a law of a place outside the State 14 and that is prescribed under a regulation for this section. 15 before application can be made 16 Requirements 301.(1) Before an application is made under section 300, the cooperative 17 must, by special resolution passed by a special postal ballot-- 18 (a) approve the proposed application; and 19 (b) decide under what name the cooperative is to apply to be 20 incorporated or registered; and 21 (c) adopt a memorandum or articles of association or rules that may 22 be necessary or considered desirable. 23 (2) The name applied for need not be the same as that of the cooperative 24 and must not include the word `cooperative' or another word importing a 25 similar meaning. 26 (3) A regulation may exempt a cooperative from compliance with a 27 provision of this section and section 19477 in relation to a matter to which 28 this section applies. 29 77 Section 194 (Special postal ballots)

 


 

s 302 173 s 305 Cooperatives body ceases to be registered as cooperative 1 New 302. On the transfer of a cooperative under this division, it ceases to be 2 registered as a cooperative under this Act. 3 not to impose greater liability etc. 4 Transfer 303.(1) The memorandum or articles of association or rules adopted in 5 the transfer must not-- 6 (a) impose on the members of the new body who were members of 7 the cooperative at the date of transfer any greater or different 8 liability to contribute to the assets of the new body than the 9 liability to which they were subject as members of the 10 cooperative; or 11 (b) deprive a member of the new body of preferential rights to 12 dividend or capital to which the member was entitled as a 13 member of the cooperative at the date of transfer. 14 (2) The transfer must result in all persons who were members of the 15 cooperative at the date of transfer becoming members of the new body. 16 (3) For a transfer of a cooperative having a share capital to a new body 17 having a share capital, the transfer must result in every member of the 18 cooperative at the date of transfer who held shares in the cooperative being 19 the holder of shares in the capital of the new body equal in number and 20 nominal value to the shares held by the member as a member of the 21 cooperative. 22 of new certificate of registration 23 Effect 304. A certificate of registration or incorporation as the new body issued 24 by the appropriate officer under the law applicable to the new body is 25 evidence that all requirements of this division about the registration or 26 incorporation have been complied with. 27 body is a continuation of the cooperative 28 New 305.(1) When a cooperative transfers to a new body, the corporation 29 constituted by the new body is taken to be the same entity as the corporation 30

 


 

s 306 174 s 307 Cooperatives constituted by the cooperative. 1 (2) Without limiting subsection (1), division 678 applies to a transfer 2 under this division. 3 3--Winding-up 4 Division ethods of winding-up 5 M 306.(1) A cooperative may be wound-up voluntarily or by the Supreme 6 Court or on a certificate of the registrar. 7 (2) For a winding-up voluntarily or by the Supreme Court, the 8 cooperative may be wound-up in the same way and in the same 9 circumstances as a company under the Corporations Law may be wound 10 up. 11 on registrar's certificate 12 Winding-up 307.(1) A cooperative may be wound-up on a certificate of the registrar 13 only if the necessary grounds for taking the action exist, as mentioned in 14 section 328.79 15 (2) A winding-up on a certificate of the registrar starts when the 16 certificate is given. 17 (3) On the giving of a certificate, the registrar may appoint a person to be 18 the liquidator of the cooperative. 19 (4) The liquidator need not be a registered liquidator under the 20 Corporations Law. 21 (5) The liquidator must, within 10 days after appointment, give notice of 22 his or her appointment in the gazette. 23 (6) The liquidator must give the security prescribed under a regulation 24 and is entitled to receive the fees fixed by the registrar. 25 78 Division 6 (Effect of merger etc. on property, liabilities etc.) 79 Section 328 (Grounds for winding-up, transfer of engagements, appointment of administrator)

 


 

s 308 175 s 308 Cooperatives (7) A vacancy occurring in the office of liquidator is to be filled by a 1 person appointed by the registrar. 2 of Corporations Law to winding-up 3 Application 308.(1) The provisions of the Corporations Law, parts 5.4 to 5.7 about 4 the winding-up or dissolution of a company under the Corporations Law 5 are adopted by this section and apply to the winding-up or dissolution of a 6 cooperative. 7 (2) For the application of the provisions to a winding-up on the 8 certificate of the registrar, the winding-up is taken to be a voluntary 9 winding-up (but the Corporations Law, section 490 does not apply). 10 (3) Provisions of the Corporations Law are adopted with any changes 11 prescribed under a regulation and as if-- 12 (a) a reference in the provisions to a special resolution or an 13 extraordinary resolution were a reference to a special resolution 14 within the meaning of this Act; and 15 (b) a reference in the provisions to the Commission were a reference 16 to the registrar; and 17 (c) section 513B were amended by inserting after paragraph (d)-- 18 `(da)if the winding-up is on the certificate of the registrar--on the 19 date the certificate is given; or'; and 20 (d) section 516 were amended by inserting after the words `past 21 member' the words `together with the charges payable by him or 22 her to the cooperative under the rules'; and 23 (e) a reference in section 461 to a proprietary company were a 24 reference to an association or federation; and 25 (f) a reference to a registered liquidator included a reference to a 26 person approved by the registrar as a liquidator of a cooperative; 27 and 28 (g) a reference in the provisions to the Corporations Law, section 260 29 were a reference to part 4, division 580 of this Act. 30 80 Part 4, division 5 (Oppressive conduct of affairs)

 


 

s 309 176 s 311 Cooperatives (4) The provisions of the Corporations Law adopted by this section are to 1 be read subject to sections 70 and 31481 for deciding the liability of 2 members and former members to contribute on a winding-up of a 3 cooperative. 4 on voluntary winding-up 5 Restrictions 309.(1) A cooperative may be wound-up voluntarily only-- 6 (a) by a creditors' voluntary winding-up; or 7 (b) if a special resolution is passed by a special postal ballot in favour 8 of voluntary winding-up. 9 (2) A regulation may exempt a cooperative from compliance with a 10 provision of this section or section 194.82 11 (3) When a special postal ballot is held, the members may, by means of 12 the same ballot, by simple majority-- 13 (a) appoint 1 or more liquidators to wind-up the affairs and distribute 14 the assets of the cooperative; and 15 (b) fix the remuneration to be paid to the liquidator. 16 of members' voluntary winding-up 17 Start 310. A members' voluntary winding-up of a cooperative starts when the 18 result of the special postal ballot is noted in the minute book by the secretary 19 of the cooperative. 20 of surplus-non-trading cooperatives 21 Distribution 311.(1) On a winding-up of a non-trading cooperative, the surplus 22 property of the cooperative must be distributed as required by the rules of 23 the cooperative. 24 (2) The rules of a non-trading cooperative must make provision for the 25 81 Sections 70 (Liability of members to cooperative) and 314 (Liability of member to contribute in a winding-up if shares forfeited etc.) 82 Section 194 (Special postal ballots)

 


 

s 312 177 s 314 Cooperatives way in which the surplus property of the cooperative is to be distributed in a 1 winding-up. 2 (3) In this section-- 3 "surplus property" means property of the cooperative remaining after 4 satisfaction of the debts and liabilities of the cooperative and the costs, 5 charges and expenses of the winding-up. 6 may be filled by registrar 7 Liquidator--vacancy 312. If a cooperative is being wound-up voluntarily and a vacancy occurs 8 in the office of liquidator that in the opinion of the registrar is unlikely to be 9 filled in the way provided by the Corporations Law, the registrar may 10 appoint a person to be liquidator. 11 of liquidator's remuneration 12 Review 313. A member or creditor of a cooperative or the liquidator may, at any 13 time before the completion of the winding-up of the cooperative, apply to 14 the Supreme Court to review the amount of the remuneration of the 15 liquidator. 16 of member to contribute in a winding-up if shares forfeited 17 Liability etc. 18 314.(1) If a person's membership of a cooperative is cancelled under 19 part 683 within 2 years before the start of the winding-up of the cooperative, 20 the person is liable on the winding-up to contribute to the property of the 21 cooperative the nominal value of shares forfeited under that cancellation 22 (being their nominal value immediately before cancellation). 23 (2) If, under section 170,84 a cooperative-- 24 (a) purchases a share of a member in the cooperative; or 25 (b) repays to a member the whole or part of the amount paid up on a 26 share held by a member; 27 83 Part 6 (Active membership) 84 Section 170 (Purchase and repayment of shares)

 


 

s 315 178 s 315 Cooperatives within 2 years before the start of the winding-up of the cooperative, the 1 member or former member is liable on the winding-up to contribute to the 2 property of the cooperative the amount paid by the cooperative to the 3 member or former member for the purchase or repayment, together with 4 any amount unpaid on the shares immediately before the purchase or 5 repayment. 6 (3) If a person contributes to the property of a cooperative under a 7 liability under this section, the amount contributed is, for the winding-up, to 8 be treated as having been paid up by the person on shares of the 9 cooperative. 10 (4) The liability of a member or former member of a cooperative under 11 this section is in addition to any other liability of the member or former 12 member to contribute to the property of the cooperative on a winding-up of 13 the cooperative. 14 Division 4--Administration of cooperative--adoption of Corporations 15 Law 16 of Corporations Law, pts 5.3A and 5.9 17 Adoption 315.(1) The provisions of the Corporations Law, part 5.3A and part 5.9, 18 division 3 are adopted by this section and apply to a cooperative as if it were 19 a company. 20 (2) The provisions apply with changes prescribed under a regulation and 21 as if-- 22 (a) references in the provisions to the Corporations Law, 23 sections 164 and 166 were references to sections 42 to 44 and 24 4685 of this Act; and 25 (b) references in the provisions to the Commission were references 26 to the registrar. 27 85 Sections 42 (Assumptions entitled to be made) to 44 (Person who knows or ought to know can not make assumptions) and 46 (Effect of fraud)

 


 

s 316 179 s 317 Cooperatives 5--Appointment of administrator 1 Division of administrator 2 Appointment 316.(1) The registrar may, by written notice, appoint an administrator to 3 conduct the affairs of a cooperative. 4 (2) A notice of appointment must state-- 5 (a) the date of appointment; and 6 (b) the appointee's name; and 7 (c) the appointee's business address. 8 (3) If the appointee's name or business address changes, the appointee 9 must immediately give written notice of the change to the registrar. 10 (4) The registrar must not appoint an administrator unless the necessary 11 grounds for taking the action exist, as mentioned in section 328.86 12 of appointment of administrator 13 Effect 317.(1) On the appointment of an administrator of a cooperative-- 14 (a) the directors of the cooperative cease to hold office; and 15 (b) all contracts of employment with the cooperative are terminated; 16 and 17 (c) all contracts for the provision of secretarial or administrative 18 services for the cooperative are terminated; and 19 (d) the administrator may terminate any contract for providing other 20 services to the cooperative. 21 (2) An administrator of a cooperative has the functions of the board of 22 the cooperative, including the board's powers of delegation. 23 (3) A director of a cooperative must not be appointed or elected while the 24 administrator is in office except as provided by this division. 25 86 Section 328 (Grounds for winding-up, transfer of engagements, appointment of administrator)

 


 

s 318 180 s 319 Cooperatives of appointment 1 Revocation 318.(1) An administrator holds office until the administrator's 2 appointment is revoked. 3 (2) The registrar may, by written notice, revoke the appointment of an 4 administrator. 5 (3) When a liquidator of a cooperative is appointed, the appointment of 6 an administrator of the cooperative is automatically revoked. 7 (4) Immediately on the revocation of an administrator's appointment, the 8 administrator must prepare and give to the registrar a report showing how 9 the administration was carried out, and for the purpose an administrator has 10 access to the cooperative's records. 11 (5) On giving the report and accounting fully for the administration of the 12 cooperative to the satisfaction of the registrar, the administrator is released 13 from any further duty to account for the administration of the cooperative 14 other than because of fraud, dishonesty, negligence or wilful failure to 15 comply with this Act. 16 (6) Before revoking the appointment of an administrator of a cooperative, 17 the registrar must-- 18 (a) appoint another administrator; or 19 (b) appoint a liquidator; or 20 (c) ensure directors of the cooperative have been elected under the 21 rules of the cooperative at a meeting called by the administrator 22 under the rules; or 23 (d) appoint directors of the cooperative. 24 (7) Directors elected or appointed under subsection (6)-- 25 (a) take office on revocation of the administrator's appointment; and 26 (b) for directors appointed under subsection (6)--hold office until the 27 next annual general meeting of the cooperative after the revocation 28 of the appointment. 29 of administration 30 Expenses 319.(1) The expenses of and incidental to the conduct of a cooperative's 31

 


 

s 320 181 s 321 Cooperatives affairs by an administrator are payable from the cooperative's funds. 1 (2) The expenses of conducting a cooperative's affairs include-- 2 (a) if the administrator is not a public service officer or 3 employee--remuneration of the administrator at a rate approved 4 by the registrar; or 5 (b) if the administrator is a public service officer or employee--the 6 amount the registrar certifies should be paid to it as repayment of 7 the administrator's remuneration. 8 (3) An amount certified under subsection (2)(b) may be recovered in a 9 court of competent jurisdiction as a debt payable to the State. 10 (4) An administrator has, in relation to the expenses mentioned in 11 subsection (1), the same priority on the winding-up of a cooperative as the 12 liquidator of the cooperative has. 13 arising from administration 14 Liabilities 320.(1) If a cooperative incurs loss because of fraud, dishonesty, 15 negligence or wilful failure to comply with this Act or the rules of the 16 cooperative by an administrator, the administrator is liable for the loss. 17 (2) An administrator is not liable for a loss that is not a loss to which 18 subsection (1) applies but must account for the loss in a report given under 19 section 318.87 20 powers of registrar 21 Additional 321.(1) If the registrar appoints directors of a cooperative under 22 section 31888 the registrar may, by written notice given to the cooperative, 23 state-- 24 (a) a time during which this section is to apply to the cooperative; and 25 (b) the terms on which all or any of the directors hold office; and 26 (c) the rules that are to be the cooperative's rules. 27 87 Section 318 (Revocation of appointment) 88 Section 318 (Revocation of appointment)

 


 

s 322 182 s 323 Cooperatives (2) While this section applies to a cooperative, the registrar may-- 1 (a) remove and appoint directors; and 2 (b) vary, revoke or state new terms in place of all or any of the terms 3 stated under subsection (1); and 4 (c) amend all or any of the rules stated under subsection (1). 5 (3) The registrar may, by written notice given to the cooperative, extend 6 the time for which this section is to apply to a cooperative. 7 (4) A rule stated by the registrar under this section to be a rule of a 8 cooperative-- 9 (a) must not to be altered other than in the way set out in this section; 10 and 11 (b) if it is inconsistent with another rule of the cooperative--prevails 12 over the other rule, and the other rule is to the extent of the 13 inconsistency inoperative; and 14 (c) has the same evidentiary value as is by this Act accorded to the 15 cooperative's rules and to copies of them. 16 of proceedings 17 Stay 322.(1) If the registrar appoints an administrator to conduct a 18 cooperative's affairs, a person must not begin or continue a proceeding in a 19 court against the cooperative until the administrator's appointment is 20 revoked other than with the leave of the Supreme Court and, if the court 21 gives leave, in accordance with any terms the court imposes. 22 (2) A person intending to apply for leave of the Supreme Court under 23 subsection (1) must give the registrar at least 10 days notice of intention to 24 apply. 25 (3) On the hearing of an application under subsection (1), the registrar 26 may be represented and may oppose the application. 27 to report to registrar 28 Administrator 323. On receipt of a request from the registrar, the administrator of a 29

 


 

s 324 183 s 326 Cooperatives cooperative must, without delay, prepare and give to the registrar a report 1 showing how the administration is being carried out. 2 6--Effect of merger etc. on property, liabilities etc. 3 Division this division applies to a merger 4 How 324.(1) This division applies to a merger of cooperatives under this part. 5 (2) In the application of this division to a merger-- 6 "new body" means the cooperative resulting from the merger. 7 "original body" means each cooperative that is a party to the merger. 8 "relevant day" means the day on which the merged cooperative is 9 registered under this Act. 10 this division applies to a transfer of engagements 11 How 325.(1) This division applies to a transfer of the engagements of a 12 cooperative to another cooperative under division 1. 13 (2) In the application of this division to a transfer of engagements-- 14 "new body" means the cooperative to which the engagements are 15 transferred. 16 "original body" means the cooperative that transfers its engagements. 17 "relevant day" means the day on which the transfer of engagements takes 18 effect. 19 this division applies to a transfer of incorporation 20 How 326.(1) This division applies to a transfer of incorporation under 21 division 2. 22 (2) In the application of this division to the transfer-- 23 "new body" means the corporation resulting from the transfer. 24 "original body" means the cooperative transferring its incorporation. 25 "relevant day" means the day on which the transfer takes effect. 26

 


 

s 327 184 s 327 Cooperatives of merger etc. on property, liabilities etc. 1 Effect 327.(1) In this section-- 2 "assets" means a legal or equitable estate or interest (whether present or 3 future and whether vested or contingent) in real or personal property of 4 any description (including money), and includes securities, choses in 5 action and documents. 6 "instrument" means an instrument (other than this Act) that creates, 7 changes or extinguishes rights or liabilities (or would do so if filed or 8 registered under any law), and includes a judgment, order and process 9 of a court. 10 "liabilities" means liabilities, debts and obligations (whether present or 11 future and whether vested or contingent). 12 (2) On and from the relevant day for an event to which this division 13 applies-- 14 (a) the assets of the original body vest in the new body without the 15 need for a conveyance, transfer, assignment or assurance; and 16 (b) the rights and liabilities of the original body become the rights and 17 liabilities of the new body; and 18 (c) all proceedings by or against the original body pending 19 immediately before the relevant day are taken to be proceedings 20 pending by or against the new body; and 21 (d) an act, matter or thing done or omitted to be done by, to or in 22 relation to the original body before the relevant day is (to the 23 extent to which the act, matter or thing has any force or effect) 24 taken to have been done or omitted by, to or in relation to the new 25 body; and 26 (e) a reference in an instrument or in a document of any kind to the 27 original body is to be read as, or as including, a reference to the 28 new body. 29 (3) The operation of this section must not be regarded-- 30 (a) as a breach of contract or confidence or otherwise as a civil 31 wrong; or 32 (b) as a breach of a contractual provision prohibiting, restricting or 33

 


 

s 328 185 s 328 Cooperatives regulating the assignment or transfer of assets, rights or liabilities; 1 or 2 (c) as giving rise to a remedy by a party to an instrument, or as 3 causing or permitting the termination of an instrument, because of 4 a change in the beneficial or legal ownership of an asset, right or 5 liability. 6 Division 7--Miscellaneous 7 for winding-up, transfer of engagements, appointment of 8 Grounds administrator 9 328.(1) This section applies to the following actions-- 10 (a) a direction by the registrar to a cooperative to transfer its 11 engagements under section 298;89 12 (b) the appointment of an administrator of a cooperative under 13 division 5;90 14 (c) the winding-up of a cooperative on a certificate of the registrar 15 under section 307.91 16 (2) The necessary grounds for taking action to which this section applies 17 exist if the registrar certifies-- 18 (a) the number of members is reduced to less than the minimum 19 number of persons allowed under section 68;92 or 20 (b) the cooperative has not started business within 1 year of 21 registration or has suspended business for more than 6 months; 22 or 23 (c) the registration of the cooperative has been obtained by mistake or 24 fraud; or 25 89 Section 298 (Transfer of engagements by directions of registrar) 90 Division 5 (Appointment of administrator) 91 Section 307 (Winding-up on registrar's certificate) 92 Section 68 (Carrying on business with too few members)

 


 

s 329 186 s 329 Cooperatives (d) the cooperative exists for an illegal purpose; or 1 (e) the cooperative has wilfully and after notice from the registrar 2 violated the provisions of this Act or the rules of the cooperative; 3 or 4 (f) the board of the cooperative has, after notice from the registrar, 5 failed to ensure the rules of the cooperative contain active 6 membership provisions under part 6;93 or 7 (g) there are, and have been for 1 month immediately before the date 8 of the registrar's certificate, insufficient directors of the 9 cooperative to form a quorum under the rules of the cooperative; 10 or 11 (h) after an inquiry under this Act into the affairs of a cooperative or 12 the working and financial condition of a cooperative--in the 13 interests of members or creditors of the cooperative or the public, 14 the action concerned should be taken. 15 (3) Alternatively, the necessary grounds for winding-up a cooperative on 16 a certificate of the registrar exist if the registrar certifies-- 17 (a) the period, if any, fixed for the duration of the cooperative by its 18 rules has ended; or 19 (b) an event (to be stated in the certificate) has occurred on the 20 occurrence of which a regulation provides, or the rules provide, 21 the cooperative is to be wound-up. 22 (4) The registrar must not certify under this section as to a matter unless 23 the matter has been proved to the registrar's satisfaction. 24 of Corporations Law about reciprocity with other 25 Adoption jurisdictions 26 329.(1) The provisions of the Corporations Law, part 5.7A are adopted 27 by this section and apply to a cooperative in the same way as they apply to a 28 company. 29 (2) The provisions apply-- 30 93 Part 6 (Active membership)

 


 

s 330 187 s 331 Cooperatives (a) with the changes prescribed under a regulation; and 1 (b) as if-- 2 (i) a reference in the provisions to a recognised company were a 3 reference to a foreign cooperative; and 4 (ii) a reference to a provision of the Corporations Law of 5 another jurisdiction were a reference to the provision as 6 applying to a foreign cooperative under a law of another 7 jurisdiction under which the foreign cooperative is 8 incorporated. 9 of Corporations Law about insolvent cooperatives 10 Adoption 330.(1) The provisions of the Corporations Law, part 5.7B (except 11 section 588G) are adopted by this section and apply to a cooperative in the 12 same way as they apply to a company. 13 (2) The provisions apply-- 14 (a) with the changes prescribed under a regulation; and 15 (b) as if a reference in the provisions to a provision of the 16 Corporations Law, section 289 were a reference to the equivalent 17 provisions of a regulation under section 23294 of this Act. 18 PART 13--ARRANGEMENTS AND 19 RECONSTRUCTIONS 20 Division 1--General requirements 21 for binding compromise or arrangement 22 Requirements 331.(1) A compromise or arrangement is binding only if it is approved 23 by order of the Supreme Court and it is agreed to-- 24 94 Section 232 (Requirements for accounts and accounting records)

 


 

s 332 188 s 332 Cooperatives (a) if the compromise or arrangement is between the cooperative and 1 any of its creditors--at a court ordered meeting by a majority in 2 number of the creditors concerned who are present and voting (in 3 person or by proxy), being a majority whose debts or claims 4 against the cooperative amount to at least 75% of the total of the 5 debts and claims of all creditors who are present and voting (in 6 person or by proxy); or 7 (b) if the compromise or arrangement is between the cooperative and 8 any of its members--by the members concerned, by special 9 resolution passed by a special postal ballot. 10 (2) The court ordered meeting mentioned in subsection (1)(a) is a 11 meeting called in accordance with an order of the Supreme Court under this 12 part. 13 (3) The Supreme Court may give its approval to a compromise or 14 arrangement subject to the alterations or conditions it considers appropriate. 15 (4) An order of the Supreme Court approving a compromise or 16 arrangement does not have effect until an office copy of the order is filed 17 with the registrar. 18 (5) On the copy being filed, the order takes effect from the date of filing 19 or the earlier date the Supreme Court states in the order. 20 Court ordered meeting of creditors 21 Supreme 332.(1) If a compromise or arrangement is proposed between a 22 cooperative and any of its creditors, the Supreme Court may, on application 23 by an appropriate person, order a meeting or meetings of the creditors 24 concerned. 25 (2) An appropriate person to apply for an order is-- 26 (a) the cooperative; or 27 (b) a member of the cooperative; or 28 (c) 1 of the creditors concerned; or 29 (d) for a cooperative being wound-up--the liquidator. 30 (3) The meeting must be called in the way and be held in the place or 31 places (in the State or elsewhere) the Supreme Court directs. 32

 


 

s 333 189 s 333 Cooperatives (4) In considering whether to make an order for a meeting to be held in 1 another jurisdiction, the Supreme Court may have regard to where creditors 2 concerned reside. 3 to be given notice and opportunity to make submissions 4 Registrar 333.(1) The Supreme Court may make an order under this division if the 5 court is satisfied-- 6 (a) at least 14 days notice of the hearing of the application for the 7 order, or a shorter period of notice the court or the registrar 8 permits, has been given to the registrar; and 9 (b) the registrar has had a reasonable opportunity to examine the 10 terms of, and make submissions to, the court in relation to the 11 proposed compromise or arrangement concerned and a draft 12 explanatory statement relating to it. 13 (2) In this section-- 14 "draft explanatory statement" means a statement-- 15 (a) explaining the effect of the proposed compromise or arrangement 16 and, in particular, stating-- 17 (i) material interests of the directors of the cooperative, whether 18 as directors, as members or creditors of the cooperative or 19 otherwise; and 20 (ii) the effect on the interests of the proposed compromise or 21 arrangement in so far as the effect is different from the effect 22 on the like interests of other persons; and 23 (b) setting out-- 24 (i) information prescribed under a regulation; and 25 (ii) other information that is material to the making of a decision 26 by a creditor or member of the cooperative whether or not to 27 agree to the proposed compromise or arrangement, being 28 information that is within the knowledge of the directors of 29 the cooperative and has not previously been disclosed to the 30 creditors or members of the cooperative. 31

 


 

s 334 190 s 335 Cooperatives of 2 or more meetings 1 Results 334. If the Supreme Court orders 2 or more meetings of creditors to be 2 held in relation to a proposed compromise or arrangement-- 3 (a) the meetings are taken to form a single meeting; and 4 (b) the votes in favour of the proposed compromise or arrangement 5 cast at each of the meetings are to be totalled; and 6 (c) the votes against the proposed compromise or arrangement cast at 7 each of the meetings are to be totalled. 8 disqualified from administering compromise etc. 9 Persons 335.(1) Except with the leave of the Supreme Court, a person must not 10 be appointed to administer, and must not administer, a compromise or 11 arrangement approved under this Act between a cooperative and any of its 12 creditors or members, whether by the terms of the compromise or 13 arrangement or under a power given by the terms of a compromise or 14 arrangement, if the person-- 15 (a) is a mortgagee of a property of the cooperative; or 16 (b) is an auditor or an officer of the cooperative; or 17 (c) is an officer of a corporation that is a mortgagee of property of the 18 cooperative; or 19 (d) is not a registered liquidator, unless the person is a corporation 20 authorised under a law of the State to administer the compromise 21 or arrangement concerned; or 22 (e) is an officer of a corporation related to the cooperative; or 23 (f) unless the registrar directs in writing this paragraph does not 24 apply in relation to the person in relation to the cooperative--has 25 within the last year been an officer or promoter of the cooperative 26 or of a related corporation. 27 (2) This section does not disqualify a person from administering a 28 compromise or arrangement under an appointment validly made before the 29 commencement. 30

 


 

s 336 191 s 338 Cooperatives of provisions of Corporations Law and application to 1 Adoption person appointed 2 336.(1) Schedule 4, sections 16, 18(2) and (4), 19, 23 and 2595 apply to a 3 person appointed to administer a compromise or arrangement as if the 4 appointment were an appointment of the person as a receiver and manager 5 of property of the cooperative and as if a reference to a receiver were a 6 reference to the person. 7 (2) The Corporations Law, section 536 is adopted by this subsection and 8 applies to a person appointed to administer a compromise or arrangement 9 as if the appointment were an appointment as a liquidator of the cooperative 10 and as if a reference to a liquidator were a reference to the person. 11 of order to be attached to rules 12 Copy 337.(1) A cooperative must ensure a copy of an order of the Supreme 13 Court approving a compromise or arrangement is attached to each copy of 14 the rules of the cooperative issued after the order is made. 15 Maximum penalty--20 penalty units. 16 (2) The Supreme Court may, by order, exempt a cooperative from 17 compliance with this section or decide the period during which the 18 cooperative must comply. 19 to arrange for reports 20 Directors 338.(1) When a compromise or arrangement (whether or not for a 21 scheme for the reconstruction of a cooperative or the merger of 2 or more 22 cooperatives) has been proposed, the directors of the cooperative must-- 23 (a) if a meeting of the members of the cooperative by resolution 24 directs--instruct the accountants or solicitors or both named in 25 the resolution to report on the proposals and send their report or 26 reports to the directors as soon as practicable; and 27 95 Schedule 4 (Receivers, and other controllers, of property of cooperatives), sections 16 (Power of Supreme Court to fix receiver's remuneration), 18 (Notification of matters relating to controller), 19 (Statement that receiver appointed or other controller acting), 23 (Lodging controller's accounts) and 25 (Enforcement of controller's duties to make returns)

 


 

s 339 192 s 340 Cooperatives (b) make the report available at the registered office of the cooperative 1 for inspection by the members and creditors of the cooperative at 2 least 7 days before the day of the meeting ordered by the 3 Supreme Court or the holding of the special postal ballot, as 4 appropriate. 5 (2) If this section is not complied with, each director of the cooperative 6 commits an offence. 7 Maximum penalty--20 penalty units. 8 of Supreme Court to restrain further proceedings 9 Power 339.(1) If a proposed compromise or arrangement is between a 10 cooperative and any of its creditors and no order has been made or 11 resolution passed for the winding-up of the cooperative, the Supreme Court 12 may restrain further proceedings in an action or other civil proceeding 13 against the cooperative except by leave of the court and on the terms the 14 court imposes. 15 (2) The Supreme Court's power under this section is in addition to any 16 of its other powers and must not be exercised except on application by the 17 cooperative or a creditor or member of the cooperative. 18 Court need not approve compromise or arrangement 19 Supreme takeovers 20 340.(1) The Supreme Court need not approve a compromise or 21 arrangement unless-- 22 (a) it is satisfied the compromise or arrangement has not been 23 proposed for enabling a person to avoid the operation of any 24 provision of part 11, division 2;96 and 25 (b) there is produced to the court a written statement by the registrar 26 stating the registrar has no objection to the compromise or 27 arrangement. 28 (2) The Supreme Court need not approve a compromise or arrangement 29 96 Part 11, division 2 (Restrictions on certain share offers)

 


 

s 341 193 s 341 Cooperatives merely because a statement by the registrar stating the registrar has no 1 objection to the compromise or arrangement has been produced to the court. 2 2--Explanatory statements 3 Division statement required to accompany notice of meeting etc. 4 Explanatory 341.(1) An explanatory statement must accompany every notice sent-- 5 (a) to a creditor of a cooperative calling the court ordered meeting to 6 obtain agreement to the compromise or arrangement; or 7 (b) to a member of a cooperative for the conduct of the special postal 8 ballot to obtain agreement to the compromise or arrangement. 9 (2) In every notice of a meeting mentioned in subsection (1) given by 10 advertisement, there must be included either a copy of the explanatory 11 statement or notification of the place at which and the way in which 12 creditors entitled to attend the meeting may obtain copies of the explanatory 13 statement. 14 (3) The explanatory statement must-- 15 (a) explain the effect of the compromise or arrangement and, in 16 particular, state-- 17 (i) material interests of the directors, whether as directors, as 18 members or creditors of the cooperative or otherwise; and 19 (ii) the effect on the interests of the compromise or arrangement 20 in so far as the effect is different from the effect on the like 21 interests of other persons; and 22 (b) state-- 23 (i) the information prescribed under a regulation; and 24 (ii) other information that is material to the making of a decision 25 by a creditor or member whether or not to agree to the 26 compromise or arrangement, is within the knowledge of the 27 directors and has not previously been disclosed to the 28 creditors or members. 29 (4) Subsection (1)(a) does not apply to a creditor whose debt is not more 30

 


 

s 342 194 s 343 Cooperatives than $200 unless the Supreme Court otherwise orders. 1 (5) The notice calling the meeting sent to a creditor mentioned in 2 subsection (4) must state a place at which a copy of the explanatory 3 statement can be obtained on request. 4 (6) The cooperative must comply with a request under subsection (5) as 5 soon as practicable. 6 for explanatory statement 7 Requirements 342.(1) An explanatory statement must be as approved by the registrar. 8 (2) If the compromise or arrangement affects the rights of debenture 9 holders, the explanatory statement must state-- 10 (a) material interests of the trustees for the debenture holders, 11 whether as trustees for the debenture holders, as members or 12 creditors of the cooperative or otherwise; and 13 (b) the effect on the interests of the compromise or arrangement to 14 the extent that the effect is different from the effect on the like 15 interests of other persons. 16 (3) If a notice given by advertisement includes a notification that copies 17 of the explanatory statement can be obtained in a particular way, the 18 cooperative must give a copy of the statement free of charge to each creditor 19 or member entitled to attend the meeting or vote in the ballot who applies 20 for it in the appropriate way. 21 (4) Each person who is a director or trustee for debenture holders must 22 give notice to the cooperative of the matters relating to the person required 23 to be included in the explanatory statement. 24 of division--offence by cooperative 25 Contravention 343.(1) If a provision of this division is contravened, the cooperative 26 concerned and any other person involved in the contravention commits an 27 offence. 28 Maximum penalty--20 penalty units. 29 (2) It is a defence to a prosecution for an offence under subsection (1) if 30 it is proved the contravention was because of the failure of a person (other 31

 


 

s 344 195 s 344 Cooperatives than the defendant), who is a director of the cooperative or a trustee for 1 debenture holders of the cooperative, to supply for the explanatory 2 statement particulars of the person's interests. 3 for facilitating reconstructions and mergers 4 Provisions 344.(1) This section applies if an application is made to the Supreme 5 Court under this part for the approval of a compromise or arrangement and 6 it is shown to the court-- 7 (a) the compromise or arrangement has been proposed for a scheme 8 for the reconstruction of a cooperative or the merger of a 9 cooperative with another cooperative or another corporation; and 10 (b) under the scheme all or part of the undertaking or of the property 11 of a cooperative concerned in the scheme ("the transferor") is to 12 be transferred to another corporation ("the transferee"), except a 13 company within the meaning of the Corporations Law. 14 (2) If this section applies, the Supreme Court may, either by the order 15 approving the compromise or arrangement or by a later order, provide for 16 any 1 or more of the following-- 17 (a) the transfer to the transferee of all or part of the undertaking and 18 the property or liabilities of the transferor; 19 (b) the allotting or appropriation by the transferee of shares, 20 debentures, policies or other interests in the transferee that, under 21 the compromise or arrangement, are to be allotted or appropriated 22 by the transferee to or for a person; 23 (c) the continuation by or against the transferee of a legal proceeding 24 pending by or against the transferor; 25 (d) the dissolution, without winding-up, of the transferor; 26 (e) provision to be made for persons who, within the time and in the 27 way the court directs, dissent from the compromise or 28 arrangement; 29 (f) the transfer or allotment of an interest in property to a person 30 concerned in the compromise or arrangement; 31 (g) the incidental, consequential and supplemental matters necessary 32

 


 

s 345 196 s 345 Cooperatives to ensure the reconstruction or merger is fully and effectively 1 carried out. 2 (3) If an order made under this section provides for the transfer of 3 property or liabilities, then, by virtue of the order-- 4 (a) the property is transferred to and vests in the transferee free, for a 5 particular property if the order so directs, from a charge that is 6 under the compromise or arrangement to cease to have effect; and 7 (b) the liabilities are transferred to and become the liabilities of the 8 transferee. 9 (4) If an order is made under this section, each body to which the order 10 relates must, within 14 days after the making of the order, file with the 11 registrar an office copy of the order. 12 (5) In this section-- 13 "cooperative" includes foreign cooperative registered, formed or 14 incorporated under a law of another State. 15 "liabilities" includes duties of any description, including duties that are of a 16 personal character or are incapable under the general law of being 17 assigned or performed vicariously. 18 "property" includes rights and powers of any description, including rights 19 and powers that are of a personal character and are incapable under the 20 general law of being assigned or performed vicariously. 21 Division 3--Acquisition of shares of dissenting shareholders 22 23 Definitions 345. In this division-- 24 "dissenting shareholder", in relation to a scheme or contract, means a 25 shareholder who has not assented to the scheme or contract or who has 26 failed to transfer the shareholder's shares under the scheme or contract. 27 "excluded shares", in relation to a scheme or contract involving a transfer 28 to a person of shares in a class of shares in a cooperative, means 29 shares in the class that, when the offer relating to the scheme or 30 contract is made, are held by-- 31

 


 

s 346 197 s 347 Cooperatives (a) in any case--the person or a nominee of the person; or 1 (b) if the person is a corporation--a subsidiary of the body. 2 and contracts to which division applies 3 Schemes 346.(1) This division applies to a scheme or contract involving a transfer 4 of shares in a cooperative (the "transferor") to a person (the "transferee") 5 that has, within 4 months after the making of the offer relating to the 6 scheme or contract by the transferee, been approved by the holders of at 7 least 90% in nominal value of all the shares concerned (other than excluded 8 shares). 9 (2) This division does not apply to a scheme or contract arising out of the 10 making of an offer to which part 11, division 297 applies. 11 of shares pursuant to notice to dissenting shareholder 12 Acquisition 347.(1) The transferee under the scheme or contract may, within 13 2 months after the offer is approved, give notice as prescribed under a 14 regulation (a "compulsory acquisition notice") to a dissenting shareholder 15 that the transferee wishes to acquire the shares held by the shareholder. 16 (2) If a compulsory acquisition notice is given, the dissenting shareholder 17 may, by written notice given to the transferee within 1 month after the day 18 the compulsory acquisition notice was given, ask for a statement in writing 19 of the names and addresses of all other dissenting shareholders as shown in 20 the register of members and the transferee must give the statement. 21 (3) Having given the compulsory acquisition notice, the transferee is, 22 unless the Supreme Court orders to the contrary, entitled and bound to 23 acquire those shares on the terms on which, under the scheme or contract, 24 the shares of the approving shareholders are to be transferred to the 25 transferee. 26 (4) The Supreme Court may give an order to the contrary only on the 27 application of the dissenting shareholder made within the later of 28 days 28 after the compulsory acquisition notice was given or 14 days after any 29 statement asked for under subsection (2) was given. 30 97 Part 11, division 2 (Restrictions on certain share offers)

 


 

s 348 198 s 349 Cooperatives (5) If alternative terms are offered to the approving shareholders-- 1 (a) the dissenting shareholder is entitled to elect which of the terms 2 are preferred but must make the election within the time allowed 3 for making an application to the Supreme Court under 4 subsection (4); and 5 (b) if the dissenting shareholder fails to make the election within the 6 time--the transferee may, unless the Supreme Court otherwise 7 orders, decide which of the terms is to apply to the acquisition of 8 the shares of the dissenting shareholder. 9 when excluded shares are more than 10% 10 Restrictions 348. If the nominal value of excluded shares is more than 10% of the 11 total nominal value of all the shares (including excluded shares) to be 12 transferred under the scheme or contract, section 347 does not apply 13 unless-- 14 (a) the transferee offers the same terms to all holders of the shares 15 (other than excluded shares) to be transferred under the scheme or 16 contract; and 17 (b) the holders who approve the scheme or contract together hold at 18 least 90% in nominal value of the shares (other than excluded 19 shares) to be transferred under the scheme or contract and are also 20 at least 75% in number of the holders of the shares (with joint 21 owners of shares being counted as 1 person). 22 shareholders may require acquisition 23 Remaining 349.(1) If, under a scheme or contract to which this division applies, the 24 transferee becomes beneficially entitled to shares in the transferor that, 25 together with other shares in the transferor to which the transferee or a 26 corporation related to the transferee is beneficially entitled, comprise or 27 include 90% in nominal value of the shares concerned, then-- 28 (a) the transferee must, within 28 days after becoming beneficially 29 entitled to the shares, give notice of the fact as prescribed under a 30 regulation to the holders of the remaining shares concerned who, 31 when the notice was given, had not assented to the scheme or 32

 


 

s 350 199 s 350 Cooperatives contract or been given a compulsory acquisition notice by the 1 transferee under this division; and 2 (b) a holder mentioned in paragraph (a) may, within 3 months after 3 being given the notice, by notice to the transferee require the 4 transferee to acquire the holder's share and, if alternative terms 5 were offered to the approving shareholders, elect which of the 6 terms the holder will accept. 7 (2) If a shareholder gives notice under this section in relation to the 8 shareholder's shares, the transferee is entitled and bound to acquire them-- 9 (a) on the terms on which under the scheme or contract the shares of 10 the approving shareholders were transferred to the transferee and, 11 if alternative terms were offered to the shareholders, on the terms 12 for which the shareholder has elected, or, if no election is made, 13 for whichever of the terms the transferee decides; or 14 (b) on other terms that may be agreed or as the Supreme Court, on 15 the application of the transferee or of the shareholder, considers 16 appropriate to order. 17 of shares pursuant to compulsory acquisition 18 Transfer 350.(1) A transferee who has given a compulsory acquisition notice 19 must-- 20 (a) send a copy of the notice to the transferor together with an 21 instrument of transfer for the shares the transferee is entitled to 22 acquire under this division and executed, on the shareholder's 23 behalf, by a person appointed by the transferee and, on the 24 transferee's own behalf, by the transferee; and 25 (b) pay, allot or transfer to the transferor the consideration for the 26 shares. 27 (2) The transferee must do so within 14 days after whichever of the 28 following happens last-- 29 (a) the period of 28 days after the day on which the compulsory 30 acquisition notice was given ends; 31 (b) the period of 14 days after a statement of the names and 32 addresses of dissenting shareholders is supplied under this 33

 


 

s 351 200 s 352 Cooperatives division ends; 1 (c) if an application has been made to the Supreme Court by a 2 dissenting shareholder--the application is disposed of. 3 (3) When the transferee has complied with this section, the transferor 4 must register the transferee as the holder of the shares. 5 (4) This section does not apply if the Supreme Court, on the application 6 of the dissenting shareholder, orders to the contrary. 7 of consideration for shares compulsorily acquired 8 Disposal 351.(1) Amounts received by the transferor under this division must be 9 paid into a separate financial institution account and the amounts, and any 10 other consideration received, are to be held by the transferor in trust for the 11 persons entitled to the shares in relation to which they were respectively 12 received. 13 (2) If an amount or other property received by the transferor under this 14 division has been held in trust by the transferor for a person for at least 15 2 years, the transferor must pay the amount or transfer the consideration, 16 and any accretions to it and any property that may become substituted for it 17 or for part of it, to the registrar. 18 (3) The registrar must then deal with it under the Corporations Law, 19 part 9.7 which for the purpose is adopted with the necessary changes 20 prescribed under a regulation. 21 (4) The transferor must comply with subsection (2) before the end of 22 10 years after the day on which the amount was paid, or the consideration 23 was allotted or transferred, to the transferor. 24 Division 4--Miscellaneous 25 of appointment of scheme manager 26 Notification 352. Within 14 days after being appointed to administer a compromise 27 or arrangement approved under this part, a person must file with the 28 registrar a written notice of the appointment. 29 Maximum penalty--10 penalty units. 30

 


 

s 353 201 s 355 Cooperatives of Supreme Court to require reports 1 Power 353. If an application is made to the Supreme Court under this part in 2 relation to a proposed compromise or arrangement, the court may-- 3 (a) before making an order on the application, require the registrar or 4 another person to give to the court a report as to-- 5 (i) the terms of the compromise or arrangement or of the 6 scheme for, or in relation to, which the compromise or 7 arrangement has been proposed; and 8 (ii) the conduct of the officers of the body or bodies concerned; 9 and 10 (iii) any other matters that, in the opinion of the registrar or the 11 person, ought to be brought to the attention of the court; and 12 (b) in deciding the application, have regard to anything contained in 13 the report; and 14 (c) make any order as to the payment of the costs of preparing and 15 giving the report as the court considers appropriate. 16 of out-of-jurisdiction compromise or arrangement 17 Effect 354.(1) A compromise or arrangement that is binding on any creditors of 18 a foreign cooperative because of a provision of the law of another State that 19 corresponds to this part is also binding on the creditors of the foreign 20 cooperative whose debts are recoverable by action in a court of this State. 21 (2) If the Supreme Court of another State makes an order under a 22 provision of the law of that State that is prescribed under a regulation as 23 corresponding to a provision of this part, the order is taken to have been 24 made by the Supreme Court of Queensland under the corresponding 25 provision of this Act and has effect and may be enforced accordingly. 26 to be exercised in harmony with Corporations Law 27 Jurisdiction jurisdiction 28 355. The jurisdiction of the Supreme Court under this part is intended to 29 complement the Supreme Court's jurisdiction under the Corporations Law 30 and should be exercised in harmony with the jurisdiction. 31

 


 

s 356 202 s 358 Cooperatives may appear etc. 1 Registrar 356. In a proceeding before the Supreme Court under this part, the 2 registrar is entitled to appear and be heard, either in person or by the 3 registrar's properly appointed representative. 4 ART 14--FOREIGN COOPERATIVES 5 P Division 1--Introductory 6 for part 7 Definitions 357. In this part-- 8 "cooperatives law" means a law that under section 35898 is declared to be 9 a cooperatives law for this part. 10 "non-participating cooperative" means a foreign cooperative other than a 11 participating cooperative. 12 "participating cooperative" means a foreign cooperative registered, 13 incorporated or formed under, or subject to, a cooperatives law. 14 "participating State" means a State in which a cooperatives law is in 15 force. 16 law 17 Cooperatives 358.(1) Subject to subsection (2), a regulation may declare a law of a 18 State other than Queensland is a cooperatives law for this part. 19 (2) A regulation may be made under subsection (1) in relation to the law 20 of another State only if the law-- 21 (a) substantially corresponds to the provisions of this Act; and 22 (b) contains provisions that are mentioned in this part as provisions 23 98 Section 358 (Cooperatives law)

 


 

s 359 203 s 360 Cooperatives of a cooperatives law that correspond to stated provisions of this 1 Act. 2 Division 2--Registration of foreign cooperatives 3 of foreign cooperatives in Queensland 4 Operation 359. A foreign cooperative must not carry on business in Queensland 5 unless it is registered under this part. 6 Maximum penalty--240 penalty units. 7 of "carrying on business" 8 Meaning 360.(1) A foreign cooperative carries on business in Queensland if it-- 9 (a) solicits for members in Queensland; or 10 (b) seeks share capital in Queensland; or 11 (c) provides any goods or services within Queensland. 12 (2) A foreign cooperative is not to be regarded as carrying on business in 13 Queensland only because in Queensland it-- 14 (a) is or becomes a party to an action, suit or arbitration proceeding 15 or effects settlement of an action, suit or proceeding or of a claim 16 or dispute; or 17 (b) holds meetings of its directors or members or carries on other 18 activities concerning its internal affairs; or 19 (c) maintains a financial institution account; or 20 (d) effects a sale through an independent contractor; or 21 (e) solicits or procures an offer that becomes a binding contract only 22 if the offer is accepted outside Queensland; or 23 (f) creates evidence of a debt or creates a charge on real and personal 24 property; or 25 (g) secures or collects any of its debts or enforces its rights in regard 26 to any securities relating to the debts; or 27

 


 

s 361 204 s 361 Cooperatives (h) conducts an isolated transaction that is completed within a period 1 of 31 days, not being 1 of a number of similar transactions 2 repeated from time to time. 3 for registration of participating cooperative 4 Application 361.(1) A participating cooperative proposing to carry on business as a 5 cooperative in Queensland may apply to the registrar in the way prescribed 6 under a regulation to be registered as a foreign cooperative. 7 (2) An application by a participating cooperative must be accompanied 8 by-- 9 (a) a certificate, not more than 2 months old, from the registrar of the 10 participating State in which the participating cooperative is 11 registered, incorporated or formed stating that the cooperative is 12 complying with the provisions of the cooperatives law of that 13 State prescribed under a regulation for the section of that law that 14 corresponds with section 370;99 and 15 (b) the documents prescribed under a regulation for the section of the 16 cooperatives law of that State that corresponds with section 370; 17 and 18 (c) a copy of the current rules of the cooperative; and 19 (d) a statement, verified as prescribed under a regulation, 20 specifying-- 21 (i) the full name and address of each person who will act as 22 agent of the cooperative in Queensland; and 23 (ii) the address of the proposed registered office of the 24 cooperative in Queensland; and 25 (e) a copy of an instrument appointing a person resident in 26 Queensland (other than a corporation incorporated outside 27 Queensland) as a person on whom all notices and legal process 28 may be served on behalf of the cooperative, verified as prescribed 29 under a regulation; and 30 (f) other documents or information prescribed under a regulation; 31 99 Section 370 (Cooperative proposing to register as a foreign cooperative)

 


 

s 362 205 s 363 Cooperatives and 1 (g) the fee prescribed under a regulation. 2 for registration of non-participating cooperative 3 Application 362.(1) A non-participating cooperative proposing to carry on business 4 as a cooperative in Queensland may apply to the registrar in the way 5 prescribed under a regulation to be registered as a foreign cooperative. 6 (2) An application by a non-participating cooperative must be 7 accompanied by-- 8 (a) a copy of the current rules of the cooperative; and 9 (b) a statement, verified as prescribed under a regulation, 10 specifying-- 11 (i) the full name and address of each person who will act as 12 agent of the cooperative in Queensland; and 13 (ii) the address of the proposed registered office of the 14 cooperative in Queensland; and 15 (c) a copy of an instrument appointing a person resident in 16 Queensland (other than a corporation incorporated outside 17 Queensland) as a person on whom all notices and legal process 18 may be served on behalf of the cooperative, verified as prescribed 19 under a regulation; and 20 (d) other documents or information prescribed under a regulation; 21 and 22 (e) the fee prescribed under a regulation. 23 to approve rules of non-participating cooperative 24 Registrar 363. A non-participating cooperative is not eligible for registration unless 25 the registrar is satisfied the rules of the cooperative-- 26 (a) comply with cooperative principles; and 27 (b) include acceptable active membership provisions; and 28 (c) provide procedures acceptable to the registrar for disclosure of 29

 


 

s 364 206 s 367 Cooperatives information; and 1 (d) provide that a member has 1 vote only; and 2 (e) make adequate provision for the duties of directors; and 3 (f) provide for acceptable accounting standards for the cooperative. 4 of foreign cooperative 5 Name 364.(1) A foreign cooperative is eligible for registration under this part if 6 the name under which it proposes to carry on business in Queensland is not 7 likely to be confused with the name of a corporation or a registered business 8 name. 9 (2) If the registrar advises the foreign cooperative the name under which 10 it proposes to carry on business in Queensland is likely to be confused with 11 the name of a corporation or registered business name, the cooperative may 12 amend its application by substituting another name. 13 of foreign cooperative 14 Registration 365. If, on application, the registrar is satisfied the foreign cooperative is 15 eligible for registration, the registrar must register the foreign cooperative as 16 a foreign cooperative and issue a certificate of registration. 17 of Act to foreign cooperatives 18 Application 366. The provisions of this Act prescribed under a regulation apply, with 19 all necessary changes and the changes prescribed under the regulation, to a 20 foreign cooperative registered under this part as if the foreign cooperative 21 were a cooperative. 22 to be notified of certain changes 23 Registrar 367. Within 28 days of a change affecting-- 24 (a) the rules or constitution of a foreign cooperative registered under 25 this part; or 26 (b) the directors of the foreign cooperative; or 27

 


 

s 368 207 s 368 Cooperatives (c) the agents (or their addresses) of the foreign cooperative; or 1 (d) the person appointed as the person on whom notices and legal 2 process may be served on behalf of the foreign cooperative; or 3 (e) the address of the registered office in Queensland of the foreign 4 cooperative; or 5 (f) the address of the registered office in the participating State of a 6 participating cooperative registered under this part; or 7 (g) the name under which the participating cooperative carries on 8 business in the participating State; 9 the foreign cooperative must file with the registrar particulars of the change 10 accompanied by the documents prescribed under a regulation. 11 sheets 12 Balance 368.(1) A foreign cooperative registered under this part must, within 13 6 months (or the longer period the registrar may allow) after the end of each 14 of its financial years, file with the registrar-- 15 (a) for a participating cooperative--a copy of the balance sheet 16 relating to its financial affairs as at the end of the financial year, in 17 the form and with the accompanying documents required by the 18 cooperatives law of the participating State concerned; and 19 (b) for a non-participating cooperative--a copy of the balance sheet 20 relating to its financial affairs as at the end of the financial year, in 21 the form and with the accompanying documents required by the 22 registrar. 23 Maximum penalty--20 penalty units. 24 (2) If the registrar considers a balance sheet filed with the registrar under 25 this section does not sufficiently disclose the financial affairs of the foreign 26 cooperative, the registrar may, by written notice, require the foreign 27 cooperative to give the registrar further information or documents. 28 (3) A foreign cooperative must comply with a notice given to it under 29 subsection (2) within the period stated in the notice. 30 Maximum penalty--60 penalty units. 31

 


 

s 369 208 s 371 Cooperatives of business 1 Cessation 369.(1) A foreign cooperative registered under this part must, within 2 7 days of ceasing to carry on business as a cooperative in Queensland, give 3 the registrar written notice of that fact. 4 Maximum penalty--60 penalty units. 5 (2) On notifying the registrar that it has ceased to carry on business as a 6 cooperative in Queensland, a foreign cooperative is no longer obliged to 7 comply with this part. 8 (3) Unless the registrar has been given written notice the foreign 9 cooperative has resumed carrying on business as a cooperative in 10 Queensland, the registrar must, 1 year after receiving a notice under 11 subsection (1), cancel the registration of the foreign cooperative. 12 proposing to register as a foreign cooperative 13 Cooperative 370.(1) A cooperative proposing to apply to be registered as a foreign 14 cooperative in another participating State may apply to the registrar for a 15 certificate that it is complying with all provisions of this Act prescribed 16 under a regulation including, if the registrar has varied a requirement in 17 relation to the cooperative, the provision as varied. 18 (2) The registrar must issue the certificate to the cooperative unless the 19 registrar considers the cooperative is not complying with the prescribed 20 provisions. 21 (3) If the registrar issues the certificate, the registrar must also give to the 22 cooperative the documents prescribed under a regulation. 23 Division 3--Mergers and transfers of engagements 24 is the appropriate registrar 25 Who 371. In this division-- 26 "appropriate registrar", in relation to a proposed merger or transfer of 27 engagements, means-- 28 (a) if the merger is to result in, or the transfer is to, a Queensland 29

 


 

s 372 209 s 373 Cooperatives cooperative--the Queensland registrar; or 1 (b) if the merger is to result in, or the transfer is to, a cooperative 2 under the cooperatives law of a participating State--the registrar 3 for the participating State. 4 for merger or transfer of engagements 5 Authority 372.(1) A Queensland cooperative and a participating cooperative may 6 consolidate all or any of their assets, liabilities and undertakings by merger 7 or transfer of engagements approved under this division. 8 (2) A Queensland cooperative and a non-participating cooperative may 9 consolidate all or any of their assets, liabilities and undertakings by merger 10 or transfer of engagements approved under this division if-- 11 (a) the merger is to result in a Queensland cooperative; or 12 (b) the transfer is to a Queensland cooperative. 13 before application can be made 14 Requirements 373.(1) Before a Queensland cooperative and a participating cooperative 15 can apply for approval under this division of a merger or transfer of 16 engagements, the proposed merger or transfer must have been approved by 17 each of the cooperatives by-- 18 (a) a special resolution passed by special postal ballot; or 19 (b) if permitted by subsection (3)--a resolution of the board of the 20 cooperative. 21 (2) Before a Queensland cooperative and a non-participating cooperative 22 can apply for approval under this division of a merger or transfer of 23 engagements, the proposed merger or transfer of engagements-- 24 (a) must have been approved-- 25 (i) for the non-participating cooperative--by a special resolution 26 of the cooperative; or 27 (ii) for the Queensland cooperative--by a special resolution 28 passed by special postal ballot; or 29 (b) if permitted by subsection (3)--must have been approved by a 30

 


 

s 374 210 s 374 Cooperatives resolution of the board of each of the cooperatives. 1 (3) The proposed merger or transfer of engagements may be approved 2 by resolution of the board of a cooperative if-- 3 (a) the Queensland registrar consents to the procedure applying in the 4 particular case; and 5 (b) for a merger or transfer affecting a participating cooperative--the 6 registrar for the participating State also consents to the procedure 7 applying in the particular case. 8 statement required 9 Disclosure 374.(1) A special resolution of the Queensland cooperative or foreign 10 cooperative is not effective for this division unless this section has been 11 complied with. 12 (2) Each cooperative must send to each of its members a disclosure 13 statement approved by the appropriate registrar stating-- 14 (a) the financial position of the Queensland cooperative and the 15 foreign cooperative as shown in financial statements that have 16 been prepared as at a date not more than 6 months before the date 17 of the statement; and 18 (b) interests an officer of the Queensland cooperative or the foreign 19 cooperative has in the proposed merger or transfer of 20 engagements; and 21 (c) compensation or other consideration proposed to be paid, or other 22 incentive proposed to be given, to an officer or member of the 23 Queensland cooperative or foreign cooperative in relation to the 24 proposed merger or transfer of engagements; and 25 (d) whether the proposal is a merger or transfer of engagements and 26 the reason for the merger or transfer of engagements; and 27 (e) for a transfer of engagements--whether it is a total or partial 28 transfer of engagement; and 29 (f) for a merger--whether the merged cooperative will result in a 30 Queensland cooperative or a cooperative under the cooperatives 31 law of the participating State; and 32

 


 

s 375 211 s 375 Cooperatives (g) other information the registrar directs. 1 (3) The disclosure statement must be sent to the members of the 2 Queensland cooperative or foreign cooperative so that it will, in the ordinary 3 course of post, reach each member who is entitled to vote on the special 4 resolution no later than-- 5 (a) if the resolution is to be decided at a meeting--21 days before the 6 date of the meeting; or 7 (b) if the resolution is to be decided by a postal ballot--21 days 8 before the day on or before which the ballot papers must be 9 returned by members voting in the ballot. 10 (4) The registrar may, by gazette notice, exempt the Queensland 11 cooperative or foreign cooperative from complying with this section. 12 (5) A gazette notice under subsection (4) is subordinate legislation. 13 (6) The registrar for the participating State may exempt the Queensland 14 cooperative or foreign cooperative from complying with this section. 15 (7) The registrar for the participating State may grant an exemption 16 subject to the conditions the registrar considers appropriate. 17 (8) The appropriate registrar may approve a disclosure statement subject 18 to the conditions the registrar considers appropriate. 19 an application 20 Making 375.(1) An application for approval of a merger or transfer of 21 engagements under this division must be made to the Queensland registrar 22 and, if the merger or transfer affects a participating cooperative, to the 23 registrar for the participating State in the way and form required by the 24 registrar concerned. 25 (2) An application for approval of a merger must be accompanied by-- 26 (a) 2 copies of the proposed rules of the merged cooperative; and 27 (b) for a non-participating cooperative--details of voting on the 28 special resolution, if any, of the cooperative; and 29 (c) other information required by the registrar to whom the 30 application is made. 31

 


 

s 376 212 s 376 Cooperatives of merger 1 Approval 376.(1) If the Queensland registrar is the appropriate registrar, the 2 Queensland registrar must approve a merger under an application under this 3 division if satisfied-- 4 (a) this division has been complied with in relation to the application; 5 and 6 (b) the proposed rules of the merged cooperative are adequate; and 7 (c) the certificate of registration of the Queensland cooperative has 8 been surrendered to the Queensland registrar; and 9 (d) for a merger with a participating cooperative--the certificate of 10 registration of the participating cooperative has been surrendered 11 to the registrar for the participating State; and 12 (e) for a merger with a non-participating cooperative--the merged 13 cooperative will comply with this Act; and 14 (f) there is no good reason why the merged cooperative and its rules 15 should not be registered. 16 (2) If the Queensland registrar is not the appropriate registrar, the 17 Queensland registrar must approve a merger under an application under this 18 division if satisfied the merger has been approved under the provision of the 19 cooperatives law of the participating State that corresponds with 20 subsection (1). 21 (3) On approving an application for merger, the Queensland registrar 22 must-- 23 (a) cancel the registration of the Queensland cooperative involved in 24 the merger; and 25 (b) if the merger is to result in a Queensland cooperative--register 26 the merged cooperative and its rules and issue to it a certificate of 27 registration under this Act. 28 (4) A merger takes effect on the issue of the certificate of registration for 29 the merged cooperative (whether under this Act or under the cooperatives 30 law of the participating State). 31

 


 

s 377 213 s 378 Cooperatives of transfer of engagements 1 Approval 377.(1) If the Queensland registrar is the appropriate registrar, the 2 Queensland registrar must approve a transfer of engagements under an 3 application under this division if satisfied-- 4 (a) this division has been complied with in relation to the application; 5 and 6 (b) the rules or proposed rules of the transferee cooperative are 7 adequate; and 8 (c) for a total transfer of engagements from a participating 9 cooperative--the certificate of registration of the participating 10 cooperative has been surrendered to the registrar for the 11 participating State concerned; and 12 (d) for a total transfer of engagements from a non-participating 13 cooperative--the certificate of registration of the non-participating 14 cooperative has been surrendered to the registrar; and 15 (e) for a transfer of engagements by a non-participating 16 cooperative--the transferee cooperative will comply with this 17 Act; and 18 (f) there is no good reason why the transfer of engagements should 19 not take effect. 20 (2) If the Queensland registrar is not the appropriate registrar, the 21 Queensland registrar must approve a transfer of engagements under an 22 application under this division if satisfied the transfer has been approved 23 under the provision of the cooperatives law of the participating State that 24 corresponds with subsection (1). 25 (3) A transfer of engagements takes effect on the day stated in the 26 approval of the Queensland registrar. 27 of merger or transfer of engagements 28 Effect 378.(1) In this section-- 29 "assets" means a legal or equitable estate or interest (whether present or 30 future and whether vested or contingent) in real or personal property of 31 any description (including money) and includes securities, choses in 32

 


 

s 378 214 s 378 Cooperatives action and documents. 1 "instrument" means an instrument (other than this Act) that creates, 2 changes, or extinguishes rights or liabilities (or would do so if filed or 3 registered under any law) and includes a judgment, order and process 4 of a court. 5 "liabilities" means liabilities, debts and obligations (whether present or 6 future and whether vested or contingent). 7 "original cooperative" means-- 8 (a) for a transfer of engagements--the transferor cooperative; or 9 (b) for a merger--each of the cooperatives that are merging. 10 "successor cooperative" means-- 11 (a) for a transfer of engagements--the transferee cooperative; or 12 (b) for a merger--the cooperative formed by the merger. 13 (2) When a merger or transfer of engagements takes effect under this 14 division (the "transfer day"), the following provisions apply to the extent 15 necessary to give effect to the merger or transfer-- 16 (a) persons who were members of the original cooperative 17 immediately before the transfer day are members of the successor 18 cooperative under its rules; 19 (b) the assets of the original cooperative vest in the successor 20 cooperative without the need for a conveyance, transfer, 21 assignment or assurance; 22 (c) the rights and liabilities of the original cooperative become the 23 rights and liabilities of the successor cooperative; 24 (d) all proceedings by or against the original cooperative pending 25 immediately before the transfer day are taken to be proceedings 26 pending by or against the successor cooperative; 27 (e) an act, matter or thing done or omitted to be done by, to or in 28 relation to the original cooperative before the transfer day is (to 29 the extent to which the act, matter or thing has any force or effect) 30 to be taken to have been done or omitted by, to or in relation to 31 the successor cooperative; 32

 


 

s 379 215 s 380 Cooperatives (f) a reference in an instrument or in a document of any kind to the 1 original cooperative is to be read as, or as including, a reference to 2 the new cooperative. 3 (3) The operation of this section must not be regarded-- 4 (a) as a breach of contract or confidence or otherwise as a civil 5 wrong; or 6 (b) as a breach of a contractual provision prohibiting, restricting or 7 regulating the assignment or transfer of assets, rights or liabilities; 8 or 9 (c) as giving rise to a remedy by a party to an instrument, or as 10 causing or permitting the termination of an instrument, because of 11 a change in the beneficial or legal ownership of an asset, right or 12 liability. 13 applies instead of certain other provisions of this Act 14 Division 379.(1) This division applies instead of part 12, division 1100 to the 15 merger of a Queensland cooperative with a foreign cooperative. 16 (2) This division applies instead of part 12, division 1 to a transfer of 17 engagements between a Queensland cooperative and a foreign cooperative. 18 PART 15--SUPERVISION AND PROTECTION OF 19 COOPERATIVES 20 1--Supervision and inspection 21 Division for part 22 Definitions 380. In this part-- 23 "cooperative venture" means-- 24 100 Part 12, division 1 (Mergers and transfers of engagements)

 


 

s 381 216 s 383 Cooperatives (a) a corporation or unit trust formed by a cooperative or in the 1 formation of which a cooperative participated; or 2 (b) a partnership, joint venture or association of persons or bodies 3 formed or entered into by a cooperative. 4 "place" includes all or part of a structure, building, aircraft, vehicle, vessel 5 and place (whether built on or not). 6 "relevant documents" means records or other documents relating to the 7 promotion, formation, membership, control, transactions, dealings, 8 business or property of a cooperative. 9 includes subsidiaries, foreign cooperatives and 10 "Cooperative" cooperative ventures 11 381. A reference in this part to a cooperative includes a reference to each 12 of the following-- 13 (a) a foreign cooperative; 14 (b) a subsidiary of a cooperative or foreign cooperative; 15 (c) a cooperative venture; 16 (d) a cooperative or foreign cooperative, or a subsidiary of either, or a 17 cooperative venture, that is in the course of being wound-up or 18 has been dissolved. 19 of inspectors 20 Appointment 382. The chief executive may appoint a person as an inspector under this 21 Act if-- 22 (a) the chief executive considers the person has the necessary 23 expertise or experience to be an inspector; or 24 (b) the person has satisfactorily finished training approved by the 25 chief executive. 26 and investigators have functions of inspectors 27 Registrar 383. The registrar, and an investigator exercising functions under 28

 


 

s 384 217 s 385 Cooperatives division 2,101 have and may exercise all the functions of an inspector and 1 for the purpose are taken to be inspectors. 2 identity card 3 Inspector's 384.(1) The chief executive must give each inspector an identity card. 4 (2) The identity card must-- 5 (a) contain a recent photo of the person; and 6 (b) be signed by the person; and 7 (c) identify the person as an inspector. 8 (3) A person who stops being an inspector must return the person's 9 identity card to the chief executive as soon as possible (but within 21 days) 10 after the person stops being an inspector, unless the person has a reasonable 11 excuse. 12 Maximum penalty--20 penalty units. 13 (4) This section does not prevent the giving of a single identity card to a 14 person for this and other Acts or for other purposes. 15 or display of inspector's identity card 16 Production 385.(1) An inspector may exercise a power in relation to someone only 17 if-- 18 (a) the inspector first produces the inspector's identity card for the 19 other person's inspection; or 20 (b) the inspector has the inspector's identity card displayed so it is 21 clearly visible to the other person. 22 (2) However, if for any reason it is not practicable to comply with 23 subsection (1) before exercising the power, the inspector must produce the 24 identity card for inspection by the person at the first reasonable opportunity. 25 101 Division 2 (Inquiries)

 


 

s 386 218 s 388 Cooperatives of inspector 1 Powers 386.(1) An inspector is subject to the directions of the registrar. 2 (2) The powers of an inspector may be limited-- 3 (a) under a regulation; or 4 (b) under a condition of appointment; or 5 (c) by written notice given by the registrar to the inspector. 6 appointment conditions 7 Inspector's 387.(1) An inspector holds office on the conditions stated in the 8 instrument of appointment. 9 (2) An inspector-- 10 (a) if the appointment provides for a term of appointment--stops 11 holding office at the end of the term; and 12 (b) if the conditions of appointment provide--stops holding office 13 when the inspector stops holding another office stated in the 14 appointment conditions (the "main office"); and 15 (c) may resign by signed notice of resignation given to the registrar. 16 (3) However, an inspector may not resign from the office under this Act 17 (the "secondary office") if a term of employment to the main office 18 requires the person to hold the secondary office. 19 of place 20 Entry 388.(1) An inspector may enter a place if-- 21 (a) its occupier consents to the entry; or 22 (b) the entry is authorised by a warrant; or 23 (c) it is a place on which the affairs or activities of a cooperative are 24 managed or conducted. 25 (2) An inspector, without the occupier's consent or a warrant, may enter 26 the land around the premises to ask its occupier for consent to enter the 27 premises. 28

 


 

s 389 219 s 390 Cooperatives to entry 1 Consent 389.(1) This section applies if an inspector intends to ask an occupier of a 2 place to consent to the inspector or another inspector entering the place. 3 (2) Before asking for the consent, the inspector must inform the 4 occupier-- 5 (a) of the purpose of the entry; and 6 (b) that the occupier is not required to consent. 7 (3) If the consent is given, the inspector may ask the occupier to sign an 8 acknowledgment of the consent. 9 (4) The acknowledgment must state-- 10 (a) that the occupier was informed-- 11 (i) of the purpose of the entry; and 12 (ii) that the occupier is not required to consent; and 13 (b) that the occupier gives an inspector consent to enter the place and 14 exercise powers under this Act; and 15 (c) the time and date the consent was given. 16 (5) If the occupier signs an acknowledgment of consent, the inspector 17 must immediately give a copy to the occupier. 18 (6) Subsection (7) applies to a court if-- 19 (a) a question arises, in a proceeding in or before the court, whether 20 the occupier of a place consented to an inspector entering the place 21 under this Act; and 22 (b) an acknowledgment under this section is not produced in 23 evidence for the entry; and 24 (c) it is not proved the occupier consented to the entry. 25 (7) The court may presume the occupier did not consent. 26 may require certain persons to appear, answer questions 27 Inspectors and produce documents 28 390.(1) An inspector may, by notice in the approved form-- 29

 


 

s 391 220 s 391 Cooperatives (a) require a cooperative to produce to the inspector at a time and 1 place stated in the notice stated relevant documents relating to the 2 cooperative; and 3 (b) require a person who is involved in the activities of a cooperative 4 to produce to the inspector at a time and place stated in the notice 5 stated relevant documents relating to the cooperative; and 6 (c) require a person who is involved in the activities of a 7 cooperative-- 8 (i) to attend before the inspector at a time and place stated in the 9 notice; and 10 (ii) to answer questions put to the person by the inspector 11 relating to the promotion, formation, membership, control, 12 transactions, dealings, business or property of the 13 cooperative. 14 (2) A person is considered to be involved in the activities of a cooperative 15 if the person-- 16 (a) is or has been an officer or employee of, or an agent, financial 17 institution, solicitor, auditor or other person acting in any capacity 18 for, the cooperative; or 19 (b) has a relevant document relating to the cooperative in the person's 20 possession or control; or 21 (c) was a party to the creation of a relevant document relating to the 22 cooperative. 23 (3) A person is not subject to any liability for complying with a 24 requirement made or purportedly made under this section. 25 of inspectors on place entered 26 Powers 391. An inspector has the following powers on a place the inspector is 27 authorised to enter-- 28 (a) power to search for evidence of a contravention of this Act; 29 (b) power to search for relevant documents and to require a person 30 on the place to produce to the inspector any relevant document in 31 the person's custody or under the person's control; 32

 


 

s 392 221 s 393 Cooperatives (c) power to require a person on the place who is apparently involved 1 in the management or conduct of the affairs or activities of a 2 cooperative to answer questions or provide information; 3 (d) power to exercise the functions of an inspector under section 392 4 in relation to a relevant document found on the place or produced 5 to the inspector. 6 of inspectors in relation to relevant documents 7 Functions 392.(1) An inspector has the following powers in relation to a relevant 8 document found by an inspector on a place entered by the inspector or 9 produced to the inspector under a requirement made under this division-- 10 (a) power to take possession of the document or secure it against 11 interference; 12 (b) power to make copies of, or take extracts from, the document; 13 (c) power to require a person who was party to the creation of the 14 document to make a statement giving any explanation the person 15 is able to give as to any matter relating to the creation of the 16 document or as to any matter to which the document relates; 17 (d) power to retain possession of the document for the period 18 necessary to enable the document to be inspected, and copies of, 19 or extracts from, the document to be made or taken. 20 (2) While an inspector retains possession of a document, the inspector 21 must permit a person who would be entitled to inspect the document were it 22 not in the possession of the inspector to inspect the document at a 23 reasonable time and make a copy of, or take extracts from, the document. 24 (3) If an inspector takes possession of or secures against interference a 25 relevant document and a person has a lien on the document, the inspector's 26 actions do not prejudice the lien. 27 from incrimination 28 Protection 393.(1) A person is not excused from making a statement under a 29 requirement under this division on the ground the statement might tend to 30 incriminate him or her. 31

 


 

s 394 222 s 394 Cooperatives (2) However, if the person claims before making a statement that the 1 statement might tend to incriminate him or her, the statement is not 2 admissible in evidence against him or her in a criminal proceeding, other 3 than a proceeding under this division. 4 (3) Except as provided by subsection (2), a statement made by a person 5 in compliance with a requirement under this division may be used in 6 evidence in any criminal or civil proceeding against the person. 7 8 Warrants 394.(1) An inspector may apply to a magistrate for a warrant to enter a 9 place. 10 (2) The application must be sworn and state the grounds on which the 11 warrant is sought. 12 (3) The magistrate may refuse to consider the application until the 13 inspector gives the magistrate all the information the magistrate requires 14 about the application in the way the magistrate requires. 15 16 Example-- 17 The magistrate may require additional information supporting the application to 18 be given by statutory declaration. (4) The magistrate may issue the warrant only if satisfied there are 19 reasonable grounds for suspecting-- 20 (a) there is a particular thing or activity (the "evidence") that may 21 provide evidence of an offence against this Act; or 22 (b) the evidence is at the place, or may be at the place, within the next 23 7 days. 24 (5) The warrant must state-- 25 (a) that the inspector may, with reasonable and necessary help and 26 force, enter the place and exercise the inspector's powers under 27 this Act; and 28 (b) the offence for which the warrant was issued; and 29 (c) any evidence that may be seized under the warrant; and 30 (d) the hours when the place may be entered; and 31

 


 

s 395 223 s 395 Cooperatives (e) the date, within 7 days after the warrant's issue, when the warrant 1 ends. 2 made other than in person 3 Warrants--applications 395.(1) An inspector may apply for a warrant by phone, fax, radio or 4 another form of communication if the inspector considers it necessary 5 because of-- 6 (a) urgent circumstances; or 7 (b) other special circumstances, including, for example, the 8 inspector's remote location. 9 (2) Before applying for the warrant, the inspector must prepare an 10 application stating the grounds on which the warrant is sought. 11 (3) The inspector may apply for the warrant before the application is 12 sworn. 13 (4) After issuing the warrant, the magistrate must immediately fax a 14 copy to the inspector if it is reasonably practicable to fax a copy. 15 (5) If it is not reasonably practicable to fax a copy to the inspector-- 16 (a) the magistrate must-- 17 (i) tell the inspector what the terms of the warrant are; and 18 (ii) tell the inspector the date and time the warrant was issued; 19 and 20 (b) the inspector must complete a form of warrant (the "warrant 21 form") and write on it-- 22 (i) the magistrate's name; and 23 (ii) the date and time the magistrate issued the warrant; and 24 (iii) the warrant's terms. 25 (6) The facsimile warrant, or the warrant form properly completed by the 26 inspector, authorises the entry and the exercise of the other powers stated by 27 the warrant issued by the magistrate. 28 (7) The inspector must, at the first reasonable opportunity, send the 29 magistrate-- 30

 


 

s 395 224 s 395 Cooperatives (a) the sworn application; and 1 (b) if the inspector completed a warrant form--the completed 2 warrant form. 3 (8) On receiving the documents, the magistrate must attach them to the 4 warrant. 5 (9) Subsection (10) applies to a court if-- 6 (a) a question arises, in a proceeding in or before the court, whether a 7 power exercised by an inspector was authorised by a warrant 8 issued under this section; and 9 (b) the warrant is not produced in evidence. 10 (10) The court may presume the exercise of the power was not 11 authorised by a warrant issued under this section, unless the contrary is 12 proved. 13 (11) A police officer may accompany an inspector executing a search 14 warrant issued under this section and may take all reasonable steps to help 15 in the exercise of the functions of the inspector under this Act. 16 (12) Before executing a search warrant, the inspector named in the 17 warrant or a person assisting the inspector must announce that he or she is 18 authorised by the warrant to enter the premises and give any person at the 19 premises an opportunity to allow entry to the premises. 20 (13) The inspector or a person assisting the inspector need not comply 21 with subsection (12) if he or she believes on reasonable grounds that 22 immediate entry to the premises is required to ensure the effective execution 23 of the search warrant is not frustrated. 24 (14) If an occupier or another person who apparently represents the 25 occupier is present at a place when a search warrant is being executed, the 26 inspector must-- 27 (a) identify himself or herself to the person by producing his or her 28 identity card for inspection by the person; and 29 (b) give to the person a copy of the execution copy of the warrant. 30

 


 

s 396 225 s 397 Cooperatives powers after entering places 1 General 396.(1) This section applies to an inspector who enters a place under this 2 part when it is open to inspection or the public or with the occupier's 3 consent or under a warrant. 4 (2) For monitoring or enforcing compliance with this Act, the inspector 5 may-- 6 (a) search any part of the place; or 7 (b) examine, inspect, photograph or film anything on the place; or 8 (c) copy a document on the place; or 9 (d) take into or onto the place any persons, equipment and materials 10 the inspector reasonably requires for exercising a power under 11 this part; or 12 (e) require a person in the place to give the inspector reasonable help 13 to exercise the powers mentioned in paragraphs (a) to (d). 14 (3) A person required to give reasonable help under subsection (2)(e) 15 must comply with the requirement, unless the person has a reasonable 16 excuse. 17 Maximum penalty--120 penalty units or 1 year's imprisonment. 18 (4) If the help is required to be given to an inspector by-- 19 (a) answering a question; or 20 (b) producing a document (other than a document required to be kept 21 under this Act); 22 it is a reasonable excuse for the person to fail to answer the question, or 23 produce the document, if complying with the requirement might tend to 24 incriminate the person. 25 to seize evidence 26 Power 397.(1) An inspector who enters a place under this part when it is open to 27 inspection or the public or with the occupier's consent may seize a thing in 28 the place if-- 29 (a) the inspector reasonably believes the thing is evidence of an 30 offence against this Act; and 31

 


 

s 398 226 s 400 Cooperatives (b) seizure of the thing is consistent with the purpose of entry as told 1 to the occupier. 2 (2) An inspector who enters a place under this part under a warrant may 3 seize the evidence for which the warrant was issued. 4 (3) An inspector may also seize anything else in a place mentioned in 5 subsection (1) or (2) if the inspector reasonably believes-- 6 (a) the thing is evidence of an offence against this Act; and 7 (b) the seizure is necessary to prevent the thing being hidden, lost or 8 destroyed or used to continue or repeat the offence. 9 for seized things 10 Receipt 398.(1) As soon as possible after an inspector seizes a thing, the 11 inspector must give a receipt for it to the person from whom it was seized. 12 (2) However, if for any reason it is not practicable to comply with 13 subsection (1), the inspector must leave the receipt at the place of seizure, in 14 a reasonably secure way and in a conspicuous position. 15 (3) The receipt must describe generally each thing seized and its 16 condition. 17 of seized things 18 Return 399.(1) An inspector must return a seized thing to its owner at the end 19 of-- 20 (a) 6 months; or 21 (b) if a proceeding for an offence involving it is started within the 22 6 months--the proceeding and any appeal from the proceeding. 23 (2) Despite subsection (1), the inspector must return the seized thing to 24 the person immediately the inspector stops being satisfied its retention as 25 evidence is necessary. 26 to require name and address 27 Power 400.(1) This section applies if-- 28

 


 

s 401 227 s 401 Cooperatives (a) an inspector finds a person committing an offence against this 1 Act; or 2 (b) an inspector finds a person in circumstances that lead, or has 3 information that leads, the inspector to reasonably suspect the 4 person has just committed an offence against this Act. 5 (2) The inspector may require the person to state the person's name and 6 address. 7 (3) When making the requirement, the inspector must warn the person it 8 is an offence to fail to state the person's name or address, unless the person 9 has a reasonable excuse. 10 (4) The inspector may require the person to give evidence of the 11 correctness of the stated name or address if the inspector reasonably 12 suspects the stated name or address is false. 13 (5) A person must comply with a requirement under subsection (2) 14 or (4), unless the person has a reasonable excuse. 15 Maximum penalty--120 penalty units or 1 year's imprisonment. 16 (6) A person does not commit an offence against subsection (5) if-- 17 (a) the person was required to state the person's name and address 18 by an inspector who suspected the person had committed an 19 offence against this Act; and 20 (b) the person is not proved to have committed the offence. 21 or misleading statements 22 False 401.(1) A person must not state anything to an inspector the person 23 knows is false or misleading in a material particular. 24 Maximum penalty--120 penalty units or 1 year's imprisonment. 25 (2) It is enough for a complaint for an offence against subsection (1) to 26 state the statement made was false or misleading to the person's knowledge 27 without stating which. 28

 


 

s 402 228 s 404 Cooperatives to require production of documents 1 Power 402.(1) An inspector may require a person to produce to the inspector, 2 for inspection, a document this Act requires the person to hold or keep. 3 (2) The person must produce the document, unless the person has a 4 reasonable excuse for not producing it. 5 Maximum penalty--120 penalty units or 1 year's imprisonment. 6 (3) The inspector may keep a document that is produced-- 7 (a) to take an extract from the document; or 8 (b) to make a copy of it. 9 (4) The inspector must return the document to the person as soon as 10 practicable after taking the extract or making the copy. 11 or misleading documents 12 False 403.(1) A person must not give to the registrar or an inspector a 13 document containing information the person knows is false or misleading 14 in a material particular. 15 Maximum penalty--120 penalty units or 1 year's imprisonment. 16 (2) Subsection (1) does not apply to a person who, when giving the 17 document-- 18 (a) tells the registrar or inspector, to the best of the person's ability, 19 how it is false, misleading or incomplete; and 20 (b) if the person has, or can reasonably get, the correct 21 information--gives the correct information to the registrar or 22 inspector. 23 (3) It is enough for a complaint against a person for an offence against 24 subsection (1) to state the document was false, misleading or incomplete to 25 the person's knowledge without stating which. 26 of inspectors 27 Obstruction 404.(1) A person must not obstruct an inspector, or a person helping an 28 inspector, in the exercise of a power under this Act, unless the person has a 29

 


 

s 405 229 s 406 Cooperatives reasonable excuse. 1 Maximum penalty--120 penalty units or 1 year's imprisonment. 2 (2) If a person obstructs an inspector in the exercise of a power under 3 this Act and the inspector decides to exercise the power, the inspector must 4 warn the person. 5 (3) In warning the person, the inspector must tell the person-- 6 (a) it is an offence to obstruct the inspector, unless the person has a 7 reasonable excuse; and 8 (b) the inspector considers the person's conduct is an obstruction. 9 (4) In this section-- 10 "obstruct" includes hinder and attempt to obstruct. 11 or extracts of records to be admitted in evidence 12 Copies 405.(1) In any legal proceeding (whether under this Act or otherwise), a 13 copy of or extract from a record relating to affairs of a cooperative is 14 admissible in evidence as if it were the original record or the relevant part of 15 the original record. 16 (2) However, a copy of or extract from a record is not admissible in 17 evidence under subsection (1) unless it is proved the copy or extract is a true 18 copy of the record or of the relevant part of the record. 19 (3) For subsection (2), evidence that a copy of or extract from a record is 20 a true copy of the record or of a part of the record may be given either orally 21 or by an affidavit or statutory declaration by a person who has compared the 22 copy or extract with the record or the relevant part of the record. 23 24 Privilege 406.(1) A lawyer is entitled to refuse to comply with a requirement under 25 section 390 or 392102 relating to a relevant document if-- 26 102 Section 390 (Inspectors may require certain persons to appear, answer questions and produce documents) or 392 (Functions of inspectors in relation to relevant documents)

 


 

s 407 230 s 407 Cooperatives (a) the document contains a privileged communication made by or 1 on behalf of or to the lawyer in his or her capacity as a lawyer; or 2 (b) the lawyer is not able to comply with the requirement without 3 disclosing a privileged communication made by or on behalf of 4 or to the lawyer in his or her capacity as a lawyer. 5 (2) The lawyer is not entitled to refuse to comply with the requirement to 6 the extent he or she is able to comply with it without disclosing the 7 privileged communication. 8 (3) The lawyer is also not entitled to refuse to comply with the 9 requirement if the person by or on behalf of whom the communication was 10 made or (if the person is under administration under the Corporations Law, 11 part 5.3A as adopted and applying under this Act, or in the course of being 12 wound-up) the administrator or the liquidator agrees to the lawyer 13 complying with the requirement. 14 (4) If the lawyer refuses to comply with the requirement, he or she must 15 immediately give in writing to the registrar-- 16 (a) the name and address of the person to whom or by or on behalf 17 of whom the communication was made (if known to the lawyer); 18 and 19 (b) enough particulars to identify the document containing the 20 communication (if the communication was made in writing). 21 Maximum penalty--60 penalty units. 22 aid for inspectors 23 Police 407.(1) An inspector may call to his or her aid a police officer if he or 24 she is obstructed, or believes on reasonable grounds he or she will be 25 obstructed, in the exercise of his or her functions as an inspector. 26 (2) A police officer has, while acting in aid of an inspector, all the 27 functions of an inspector. 28

 


 

s 408 231 s 408 Cooperatives 2--Inquiries 1 Division for division 2 Definitions 408. In this division-- 3 "affairs", of a cooperative, includes-- 4 (a) the promotion, formation, membership, control, transactions, 5 dealings, business and property of the cooperative; and 6 (b) loans made to the cooperative; and 7 (c) matters that are concerned with identifying people who are, or 8 have been, financially interested in the success or failure, or 9 apparent success or failure, of the cooperative or who are, or have 10 been, able to control or influence materially the policies of the 11 cooperative; and 12 (d) the circumstances in which a person placed, withdrew or 13 disposed of funds with, or loans to, the cooperative. 14 "costs", of an inquiry under this division, includes-- 15 (a) the expenses of, and incidental to, the inquiry; and 16 (b) the expenses payable by the registrar in a proceeding instituted by 17 the registrar under this division in the name of the cooperative the 18 subject of the inquiry; and 19 (c) the part of the remuneration of an officer or employee of the State 20 as the Minister decides is attributable to matters connected with 21 the inquiry. 22 "investigator" means a person appointed under section 409. 23 "involved person", in relation to an inquiry into the affairs of a 24 cooperative, means-- 25 (a) an officer of the cooperative; or 26 (b) a person who acts, or has at any time acted, as financial 27 institution, solicitor, auditor or actuary, or in another capacity, for 28 the cooperative; or 29 (c) a person who has, or at any time had, in his or her possession 30 property of the cooperative; or 31

 


 

s 409 232 s 410 Cooperatives (d) a person who is indebted to the cooperative; or 1 (e) a person who is capable of giving information relating to the 2 affairs of the cooperative; or 3 (f) a person whom an investigator believes on reasonable grounds to 4 be a person mentioned in paragraphs (a) to (e). 5 of investigators 6 Appointment 409.(1) The Minister may appoint a person or persons to hold an inquiry 7 into the affairs of a cooperative if the Minister considers it is desirable to do 8 so for the protection or otherwise in the interests of the public or of 9 members or creditors of the cooperative. 10 (2) The Minister may vary the terms of appointment of an investigator if 11 the investigator agrees to the variation. 12 (3) In the course of an inquiry into the affairs of a cooperative, an 13 investigator may inquire into the affairs of a subsidiary of the cooperative 14 that, if the subsidiary were the cooperative, would be affairs of the 15 cooperative. 16 (4) An inquiry into the affairs of a subsidiary of a cooperative may be 17 conducted as if the subsidiary were the cooperative. 18 of investigators 19 Powers 410.(1) An investigator inquiring into the affairs of a cooperative may, 20 by giving an involved person a notice in the approved form, require the 21 person-- 22 (a) to produce any document of which the person has custody or 23 control and that relates to those affairs; or 24 (b) to give the investigator all reasonable help in the inquiry; or 25 (c) to appear before the investigator for examination on oath or 26 affirmation. 27 (2) An investigator may administer an oath or affirmation to an involved 28 person given a notice under subsection (1). 29 (3) An investigator may take possession of a document produced by an 30

 


 

s 411 233 s 412 Cooperatives involved person under subsection (1) and retain it for the period the 1 investigator decides is necessary for the inquiry. 2 (4) While an investigator retains possession of a document, the 3 investigator must permit a person who would be entitled to inspect the 4 document were it not in the investigator's possession to inspect the 5 document at any reasonable time and make a copy of, or take extracts from, 6 the document. 7 of involved person 8 Examination 411.(1) A lawyer acting for an involved person-- 9 (a) may attend an examination of the involved person by an 10 investigator; and 11 (b) may, to the extent the investigator permits, address the 12 investigator and examine the involved person. 13 (2) An involved person is not excused from answering a question asked 14 by the investigator even if seeking to be excused on the ground of possible 15 self-incrimination. 16 (3) If an involved person answers a question of an investigator after 17 having claimed possible self-incrimination by doing so, neither the question 18 nor the answer is admissible in evidence in a criminal proceeding other 19 than-- 20 (a) a proceeding under section 413103 for giving a false or misleading 21 answer to the question; or 22 (b) a proceeding on a charge of perjury in relation to the answer. 23 (4) An involved person who attends for examination by an investigator is 24 entitled to be paid the allowance and the expenses prescribed under a 25 regulation. 26 27 Privilege 412.(1) An involved person who is a lawyer is entitled to refuse to 28 produce a document to an investigator if the document contains a privileged 29 103 Section 413 (Offences by involved persons)

 


 

s 413 234 s 413 Cooperatives communication made by or on behalf of or to the lawyer in his or her 1 capacity as a lawyer. 2 (2) The lawyer is not entitled to refuse to produce the document if the 3 person by or on behalf of whom the communication was made or (if the 4 person is under administration under the Corporations Law, part 5.3A as 5 adopted and applying under this Act, or in the course of being wound-up) 6 the administrator or liquidator agrees to the lawyer producing the document. 7 (3) If the lawyer refuses to comply with the requirement to produce a 8 document, he or she must immediately give in writing to the investigator-- 9 (a) the name and address of the person to whom or by or on behalf 10 of whom the communication was made (if known to the lawyer); 11 and 12 (b) enough particulars to identify the document. 13 Maximum penalty--60 penalty units. 14 by involved person 15 Offences 413.(1) An involved person must not-- 16 (a) fail to comply with a lawful requirement of an investigator 17 without showing reasonable cause for the failure; or 18 (b) give an investigator information knowing the information to be 19 false or misleading in a material particular; or 20 (c) when appearing before an investigator-- 21 (i) make a statement knowing the statement to be false or 22 misleading in a material particular; or 23 (ii) fail to be sworn or to make an affirmation. 24 Maximum penalty--240 penalty units or 2 years imprisonment. 25 (2) If an investigator considers a failure by a person to comply with a 26 requirement of the investigator is an offence under subsection (1)(a), the 27 investigator may certify the failure to the Supreme Court and the court may 28 then-- 29 (a) order the involved person to comply with the requirement of the 30 investigator within a stated period; or 31

 


 

s 414 235 s 415 Cooperatives (b) instead of, or in addition to, making the order, punish the 1 involved person as for a contempt of the Supreme Court if 2 satisfied there was no lawful excuse for the failure to comply with 3 the requirement of the investigator. 4 relating to documents 5 Offences 414. If an inquiry into the affairs of a cooperative is being held under this 6 division, a person who-- 7 (a) conceals, destroys, mutilates or alters a document relating to the 8 cooperative; or 9 (b) sends, or causes to be sent, out of the State a document or other 10 property belonging to, or under the control of, the cooperative; 11 commits an offence, unless it is established the person charged did not 12 intend to defeat, delay or obstruct the inquiry. 13 Maximum penalty--120 penalty units or 1 year's imprisonment. 14 of examination 15 Record 415.(1) Except as provided by section 411, 104 a record of an examination 16 may be used in a proceeding against the person examined, but this does not 17 preclude the admission of other written or oral evidence. 18 (2) A person examined is, on written application made to the 19 investigator, entitled to a free copy of the record of examination. 20 (3) The registrar may give a lawyer a copy of a record of examination 21 made by an investigator if the registrar is satisfied the lawyer is conducting, 22 or is in good faith contemplating, a proceeding about affairs of the 23 cooperative to which the record relates. 24 (4) A lawyer must not-- 25 (a) use a copy of a record of examination otherwise than for the 26 preparation for, institution of, or conduct of, a proceeding; or 27 (b) publish or communicate the record or part of it for another 28 104 Section 411 (Examination of involved persons)

 


 

s 416 236 s 416 Cooperatives purpose. 1 Maximum penalty--60 penalty units. 2 of investigator 3 Report 416.(1) An investigator may, and if directed by the registrar to do so 4 must, make interim reports to the registrar on any inquiry being held by the 5 investigator. 6 (2) As soon as practicable after the end of an inquiry, the investigator 7 must report to the registrar-- 8 (a) the opinion of the investigator in relation to the affairs of the 9 cooperative the subject of the inquiry; and 10 (b) the findings on which the opinion is based. 11 (3) An investigator's report may include a recommendation as to 12 whether-- 13 (a) an order should be made under section 419(3);105 or 14 (b) an application should be made under section 419(4) or (5); or 15 (c) an order and an application should both be made. 16 (4) A report by an investigator may be accompanied by any document of 17 which the investigator has taken possession after being produced under this 18 division, in which case the registrar-- 19 (a) may retain the document for the period the registrar considers 20 necessary to decide whether a proceeding should be instituted as a 21 result of the inquiry; and 22 (b) may retain the document for the further period the registrar 23 considers necessary to enable a proceeding to be instituted and 24 prosecuted; and 25 (c) may permit the use of the document for a proceeding instituted as 26 a result of the inquiry; and 27 (d) must permit inspection of the document by a person who would 28 be entitled to inspect it if it were returned to its former custody; 29 105 Section 419 (Costs of inquiry)

 


 

s 417 237 s 418 Cooperatives and 1 (e) may permit inspection of the document by another person while it 2 is in the possession of the registrar, but only if the registrar 3 considers the person has an interest in the inquiry and, because of 4 the interest, refusal of the inspection would be unjust. 5 following inquiry 6 Proceedings 417.(1) If a proceeding is to be, or has been, instituted by the registrar as 7 a result of an inquiry under this division, the registrar may, by written 8 notice, require a person who, in relation to the inquiry, was an involved 9 person to give all the assistance in the proceeding the person is reasonably 10 able to give. 11 (2) The Supreme Court may, on the application of the registrar, order a 12 person to comply with a notice under subsection (1) if the person has failed 13 to do so. 14 (3) If the registrar considers, as a result of an inquiry under this division, 15 a proceeding should, in the public interest, be instituted by a cooperative for 16 the recovery of-- 17 (a) damages for fraud or other misconduct in the affairs of the 18 cooperative; or 19 (b) property of the cooperative; 20 the proceeding may be instituted and prosecuted in the name of the 21 cooperative. 22 of investigator's report as evidence 23 Admission 418.(1) A document certified by the registrar as being a copy of a report 24 of an inquiry under this division is admissible as evidence of any findings 25 made by the investigator. 26 (2) Subsection (1) does not authorise the admission of evidence that is 27 inadmissible under section 411.106 28 106 Section 411 (Examination of involved person)

 


 

s 419 238 s 420 Cooperatives of inquiry 1 Costs 419.(1) The costs of an inquiry under this division are to be paid out of 2 money appropriated by Parliament. 3 (2) At the direction of the Minister, the registrar must act under 1 or 4 more of subsections (3), (4) and (5). 5 (3) The registrar may, by written notice given to a cooperative, direct the 6 cooperative to pay to the State all or part of the costs of an inquiry under this 7 division into the affairs of the cooperative. 8 (4) If a proceeding is instituted by the registrar under section 417107 in 9 the name of a cooperative, the court may, in the course of the proceeding 10 and on the application of the registrar, order all or part of the costs of the 11 inquiry that led to the proceeding be paid to the State by a stated party to the 12 proceeding. 13 (5) If a person is convicted of an offence in a proceeding certified by the 14 registrar to be the result of an inquiry into the affairs of a cooperative, the 15 court may, on the application of the registrar made at the time of the 16 conviction or within 14 days later, order the convicted person to pay to the 17 State all or part of the costs of the inquiry. 18 (6) An order under this section must state-- 19 (a) the amount to be paid; and 20 (b) the time or times for payment; and 21 (c) the manner of payment. 22 (7) An amount that has not been paid by a person in accordance with an 23 order under this section is recoverable from the person by the registrar as a 24 debt payable to the State. 25 Division 3--Prevention of fraud etc. 26 of records 27 Falsification 420. A person must not make, order or allow to be made an entry or 28 107 Section 417 (Proceedings following inquiry)

 


 

s 421 239 s 423 Cooperatives erasure in, or an omission from-- 1 (a) a record of a cooperative or a subsidiary of a cooperative; or 2 (b) a record required to be sent, kept or delivered under this Act; 3 with intent to falsify them or it, or to evade a provision of this Act. 4 Maximum penalty--60 penalty units. 5 or misappropriation 6 Fraud 421.(1) A person must not-- 7 (a) by false representation or imposition obtain possession of any 8 property of a cooperative; or 9 (b) having property of a cooperative in his or her possession, 10 withhold or misapply it or wilfully apply part of it to purposes 11 other than purposes authorised by the rules of the cooperative or 12 this Act. 13 Maximum penalty--60 penalty units. 14 (2) A person who is found guilty of an offence under subsection (1) 15 must, if ordered to do so by the court, deliver up all the property and repay 16 all money improperly applied. 17 Maximum penalty--60 penalty units or 6 months imprisonment. 18 or paying commission 19 Offering 422. A person must not offer or pay commission, fee or reward, whether 20 pecuniary or otherwise, to an officer of a cooperative in relation to a 21 transaction or proposed transaction between the person and the cooperative. 22 Maximum penalty--60 penalty units or 6 months imprisonment. 23 commission 24 Accepting 423.(1) An officer of a cooperative must not accept a commission, fee or 25 reward, whether pecuniary or otherwise, from a person in relation to a 26 transaction or proposed transaction between the person and the cooperative. 27 Maximum penalty--60 penalty units or 6 months imprisonment. 28

 


 

s 424 240 s 425 Cooperatives (2) An officer of a cooperative who is found guilty of an offence under 1 subsection (1) is also liable to make good to the cooperative double the 2 value or amount of the commission, fee or reward. 3 statements in loan application etc. 4 False 424.(1) A person must not in, or in relation to, an application, request, or 5 demand for money made to or of a cooperative-- 6 (a) give information or make a statement to the cooperative or an 7 officer, employee or agent of the cooperative knowing it to be 8 false or misleading in a material particular; or 9 (b) proffer to the cooperative or an officer, employee or agent of the 10 cooperative any information or statement provided by another 11 person knowing it to be false or misleading in a material 12 particular. 13 Maximum penalty--60 penalty units or 6 months imprisonment. 14 (2) If a person is found guilty of an offence under subsection (1), a 15 cooperative from which money has been obtained by the person in relation 16 to the commission of the offence may exercise all rights under a mortgage 17 or other security given to it by the person to secure the repayment of money 18 that it could exercise if there were a breach of a covenant or of a term of a 19 contract by which the security was given. 20 (3) The cooperative may exercise the rights whether the mortgage or 21 other security was executed by the person alone or by the person and 22 another person or other persons. 23 4--Miscellaneous powers of the registrar 24 Division for special meeting or inquiry 25 Application 425.(1) The registrar must, on the application of a majority of the 26 members of the board or of not less than one-third in number of the 27 members of a cooperative-- 28 (a) call a special meeting of the cooperative; or 29 (b) hold, or appoint an inspector to hold, an inquiry into the affairs of 30

 


 

s 426 241 s 427 Cooperatives the cooperative or of a subsidiary of the cooperative. 1 (2) An application must be supported by the evidence the registrar directs 2 to show the applicants have good reason for requiring the meeting or 3 inquiry and the application is made without malicious motive. 4 (3) Notice of the application must be given to the cooperative as the 5 registrar directs. 6 (4) The applicants must give security for the expenses of the meeting or 7 inquiry as directed by the registrar. 8 of special meeting 9 Holding 426.(1) The registrar may direct the time and place at which a special 10 meeting is to be held and the matters to be discussed and decided at the 11 meeting. 12 (2) The registrar must give the notice to members of the holding of the 13 special meeting that the registrar considers appropriate (despite a provision 14 in the cooperative's rules as to the giving of notice). 15 (3) The special meeting has all the powers of a meeting called under the 16 rules of the cooperative and has power to appoint its own chairperson 17 (despite a rule of the cooperative to the contrary). 18 (4) The registrar or another person nominated by the registrar may attend 19 and address the meeting. 20 of special meeting or inquiry 21 Expenses 427. The expenses of and incidental to a meeting called or an inquiry held 22 under this division (including under section 428108 ) must be defrayed in the 23 proportions the registrar directs-- 24 (a) by the applicants, if any; or 25 (b) out of the funds of the cooperative to which the meeting or 26 inquiry related or whose subsidiary was the subject of the inquiry; 27 or 28 108 Section 428 (Power to hold special inquiry into cooperative)

 


 

s 428 242 s 431 Cooperatives (c) by an officer, member, former officer or former member of the 1 cooperative. 2 to hold special inquiry into cooperative 3 Power 428. The registrar may without an application hold, or appoint an 4 inspector to hold, an inquiry into the working and financial condition of a 5 cooperative or a subsidiary of a cooperative. 6 meeting following inquiry 7 Special 429.(1) After an inquiry under this division, the registrar may call a 8 special meeting of the cooperative. 9 (2) Sections 426 and 427109 apply to the meeting. 10 and evidence 11 Information 430.(1) On an application for registration of a cooperative or registration 12 or approval of a rule or document under this Act, the registrar may require 13 from the applicant reasonable information and evidence to show the 14 application should be granted. 15 (2) The registrar may require from a cooperative reasonable information 16 and evidence to show the cooperative is genuinely carrying on business 17 under the provisions of this Act. 18 (3) The registrar may require from a cooperative evidence the registrar 19 considers appropriate of all matters required to be done and of the entries in 20 a document required to be given to the registrar under this Act. 21 or abridgment of time 22 Extension 431.(1) The registrar may grant an extension of, or may abridge, a time 23 for doing anything required to be done by a cooperative by this Act or the 24 rules of a cooperative on the terms, if any, the registrar decides. 25 109 Sections 426 (Holding of special meeting) and 427 (Expenses of special meeting or inquiry)

 


 

s 432 243 s 434 Cooperatives (2) The registrar may grant an extension of time even if the time for 1 doing the thing has ended. 2 of registrar to intervene in proceedings 3 Power 432.(1) The registrar may intervene in a proceeding relating to a matter 4 arising under this Act. 5 (2) When the registrar intervenes in a proceeding, the registrar is taken to 6 be a party to the proceeding and, subject to this Act, has all the rights, duties 7 and liabilities of a party to the proceeding. 8 (3) The registrar may appear and be represented in a proceeding in which 9 the registrar wishes to intervene under this section-- 10 (a) by a person to whom the registrar has delegated the registrar's 11 functions under this Act or the functions relating to a matter to 12 which the proceeding relates; or 13 (b) by a public service officer or employee who is engaged in the 14 administration of this Act; or 15 (c) by a lawyer. 16 PART 16--ADMINISTRATION OF THIS ACT 17 1--The registrar and other staff, and registers 18 Division of registrar 19 Appointment 433. The chief executive is the registrar of cooperatives for this Act. 20 functions 21 Registrar's 434.(1) Subject to this Act, the registrar is responsible for the general 22 administration of this Act. 23 (2) The registrar has the functions conferred on the registrar under this 24 Act. 25

 


 

s 435 244 s 437 Cooperatives (3) The registrar must have a seal of office. 1 (4) The registrar may enter into arrangements or agreements with an 2 entity to act as the agent of the registrar in the carrying out of the registrar's 3 functions. 4 registrar and other staff 5 Deputy 435.(1) There is to be appointed under the Public Service Act 1996 a 6 deputy registrar and the assistant registrars necessary for this Act. 7 (2) The deputy registrar or an assistant registrar may exercise any of the 8 functions conferred on the registrar. 9 by registrar 10 Delegation 436.(1) The registrar may delegate the registrar's powers, including this 11 power of delegation, to an appropriately qualified public service officer. 12 (2) A delegation of a power may permit the subdelegation of the power. 13 (3) In this section-- 14 "appropriately qualified", for a person to whom a power under this Act 15 may be delegated, includes having the qualifications, experience or 16 standing appropriate to exercise the power. 17 of cooperatives 18 Register 437.(1) There is established a register of-- 19 (a) cooperatives; and 20 (b) foreign cooperatives; and 21 (c) cooperative charges. 22 (2) The registrar must record in the register documents relating to an 23 entity or thing, or a proposed entity, mentioned in subsection (1) that are 24 specified by the registrar by gazette notice and anything else required by this 25 Act to be recorded in the register. 26

 


 

s 438 245 s 440 Cooperatives of registers 1 Keeping 438.(1) The registrar must keep the register of cooperatives and any other 2 registers the registrar considers necessary or desirable for the purposes of 3 this Act. 4 (2) Subject to section 437, a register must be kept in the form and contain 5 the particulars that the registrar considers appropriate. 6 (3) Subject to section 439, a document filed with, given to or registered 7 by the registrar under this Act must be kept in the office of the registrar. 8 of records by registrar 9 Disposal 439. Subject to the Libraries and Archives Act 1988, the registrar may, if 10 the registrar considers it is no longer necessary or desirable to retain them, 11 destroy or dispose of any of the following-- 12 (a) an annual report or balance sheet filed more than 7 years ago; 13 (b) a document creating or evidencing a charge, or the complete or 14 partial satisfaction of a charge, if a memorandum of satisfaction 15 of the charge was registered more than 7 years ago; 16 (c) another document (other than the rules or a document affecting 17 the rules of a cooperative) filed, given or registered more than 18 15 years ago; 19 (d) a document filed, given or registered in relation to a cooperative 20 that was dissolved or ceased to be registered more than 15 years 21 ago; 22 (e) a document of which a transparency or electronic image has been 23 incorporated with a register kept by the registrar or is otherwise 24 kept in the office of the registrar. 25 of register 26 Inspection 440.(1) A person may-- 27 (a) inspect a register on payment of the fee, if any, prescribed under a 28 regulation; and 29 (b) inspect documents kept by the registrar relating to a cooperative 30

 


 

s 441 246 s 443 Cooperatives and prescribed under a regulation on payment of the fee, if any, 1 prescribed under a regulation; and 2 (c) obtain, on payment of the fee prescribed under a regulation, an 3 extract from a register inspected under paragraph (a); and 4 (d) obtain, on payment of the fee prescribed under a regulation, a 5 certified copy of a document that the person may inspect under 6 paragraph (b); and 7 (e) obtain, on payment of the fee prescribed under a regulation, a 8 copy of a document that the person may inspect under 9 paragraph (b). 10 (2) If a reproduction or transparency of a document or an extract of 11 information contained in a document and recorded in the register is 12 produced for inspection, a person is not entitled under subsection (1) to 13 require the production of the original of the document. 14 by registrar 15 Approvals 441.(1) This section applies to any provision of this Act imposing a 16 requirement for the registrar's approval of an action or thing. 17 (2) The registrar may indicate in writing to an applicant for the approval 18 that the approval is taken to have been granted at the end of a specified 19 period unless the registrar informs the applicant in writing within the period 20 that the approval has not been granted or is still being considered. 21 of documents 22 Filing 442. A document is not filed under this Act unless-- 23 (a) all information required to be provided in or with the document is 24 provided; and 25 (b) the fee, if any, prescribed under a regulation has been paid. 26 of filing 27 Way 443.(1) Subject to section 442, it is enough compliance with a 28 requirement under this Act that a document be filed with the registrar if the 29

 


 

s 444 247 s 445 Cooperatives registrar receives a copy of the document by facsimile or electronic 1 transmission. 2 (2) If the registrar receives from a person a copy of a document under 3 subsection (1), the registrar may require the person to produce and file the 4 original within the time specified by the registrar. 5 (3) If the person does not comply with a requirement of the registrar 6 within the specified time, the person is to be taken not to have filed the 7 document. 8 of registrar to refuse to register or reject documents 9 Power 444.(1) The registrar may refuse to register or may reject a document 10 submitted to the registrar if the registrar considers the document-- 11 (a) contains matter contrary to law; or 12 (b) contains matter, that in a material particular, is false or misleading 13 in the form or context in which it is included; or 14 (c) because of an omission or misdescription, has not been properly 15 completed; or 16 (d) does not comply with the requirements of this Act; or 17 (e) contains an error, alteration or erasure. 18 (2) If the registrar refuses to register or rejects a document under 19 subsection (1), the registrar may ask that-- 20 (a) the document be appropriately amended; or 21 (b) a fresh document be submitted in its place; or 22 (c) if the document has not been properly completed--a 23 supplementary document in the approved form be submitted. 24 Division 2--Protection from liability 25 officials protected from liability 26 Particular 445.(1) In this section-- 27 "official" means-- 28

 


 

s 446 248 s 447 Cooperatives (a) the Minister; or 1 (b) the registrar; or 2 (c) a deputy or assistant registrar; or 3 (d) an officer or employee of the department. 4 (2) An official does not incur civil liability for an act done, or omission 5 made, honestly and without negligence under this Act. 6 (3) If subsection (2) prevents a civil liability attaching to an official, the 7 liability attaches instead to the State. 8 3--Evidence 9 Division of registration 10 Certificate 446.(1) A certificate of registration of a cooperative issued under this Act 11 is evidence that the cooperative is incorporated under this Act and that all the 12 requirements of this Act for registration have been complied with. 13 (2) This section does not affect a provision of this Act for the winding-up 14 or dissolution of the cooperative or the cancellation of its registration. 15 evidence 16 Certificate 447.(1) If a function under this Act is conferred or imposed on the 17 registrar as a consequence of something being done or omitted to be done 18 within a specified period, the registrar may certify that-- 19 (a) the thing had or had not been done within that period; or 20 (b) the thing had or had not been done by a specified date. 21 (2) The registrar may issue a certificate stating that a requirement of this 22 Act specified in the certificate-- 23 (a) had, or had not, been complied with at a date or within a period 24 specified in the certificate; or 25 (b) had been complied with at a date specified in the certificate but not 26 before the date. 27 (3) The registrar may issue a certificate stating that on a date specified in 28

 


 

s 448 249 s 450 Cooperatives the certificate a body specified in the certificate was not or had ceased to be 1 registered as a cooperative under this Act. 2 (4) A certificate given by the registrar under this section is evidence of 3 the matters stated in the certificate. 4 kept by cooperatives 5 Records 448.(1) A record kept by a cooperative under a requirement of this Act is 6 admissible in evidence in a proceeding and is evidence of a matter stated or 7 recorded in the record. 8 (2) A document purporting to be a record kept by a cooperative is, unless 9 the contrary is proved, taken to be a record kept by the cooperative under a 10 requirement of this Act. 11 (3) A copy of an entry in a record regularly kept by a cooperative in the 12 course of its business is, if verified by statutory declaration of the secretary 13 to be a true copy of the entry, to be received in evidence in any case where 14 and to the same extent as the original entry itself is admissible. 15 inutes 16 M 449.(1) Every entry in the minutes purporting to be a minute of the 17 business transacted at a meeting of a cooperative or of the board, and 18 purporting to have been signed by the chairperson at a subsequent meeting, 19 is evidence that the business recorded in the minute was transacted at the 20 meeting and that the meeting was properly convened and held. 21 (2) An entry in the minutes of a meeting of a cooperative to the effect that 22 a resolution was carried or carried unanimously, or was lost, is evidence of 23 the fact without proof of the number or proportion of votes recorded for or 24 against the resolution. 25 certificates 26 Official 450.(1) A certificate of registration given by the registrar must be 27 received in evidence as if it were the original certificate. 28 (2) A certificate of registration or other official document relating to a 29 cooperative signed by or bearing the seal of the registrar is to be received in 30

 


 

s 451 250 s 454 Cooperatives evidence without further proof. 1 (3) A copy of rules certified by the registrar to be a true copy of the rules 2 of a cooperative is evidence of the registered rules of the cooperative. 3 registrar and proceedings 4 The 451.(1) Judicial notice must be taken of the signature or the facsimile of 5 the signature (by whatever process it is produced) and seal of a person who 6 holds or has held the office of registrar, if the signature or facsimile 7 signature or seal purports to be attached to a certificate or other official 8 document. 9 (2) This section extends to a copy of the rules of a cooperative certified 10 by the registrar to be a true copy of its registered rules. 11 (3) In a proceeding, no proof is required (until evidence is given to the 12 contrary) of the appointment of the registrar or a former registrar. 13 14 Rules 452. A printed copy of the rules of a cooperative verified by statutory 15 declaration of the secretary of the cooperative to be a true copy of its 16 registered rules is, in a proceeding, evidence of the rules. 17 18 Registers 453. The register of directors, members and shares of a cooperative is 19 evidence of the particulars directed or authorised under this Act to be 20 inserted in the register. 21 PART 17--OFFENCES AND PROCEEDINGS 22 by officers of cooperatives 23 Offences 454.(1) If a cooperative contravenes a provision of this Act-- 24 (a) a person who is a director of the cooperative or concerned in its 25

 


 

s 455 251 s 456 Cooperatives management is taken to have contravened the same provision if 1 the person knowingly authorised or permitted the contravention; 2 and 3 (b) another officer of the cooperative who by a wilful act or omission 4 is the cause of the contravention is taken to have contravened the 5 same provision. 6 (2) A person may be proceeded against and convicted under a provision 7 under subsection (1) whether or not the cooperative has been proceeded 8 against or convicted under the provision. 9 (3) This section does not affect any liability imposed on a cooperative for 10 an offence committed by the cooperative against this Act. 11 to be given of conviction for offence 12 Notice 455. If a cooperative or an officer of a cooperative is convicted of an 13 offence against a provision of this Act, the cooperative must, within 28 days 14 after the conviction is recorded, give to each member of the cooperative 15 notice of-- 16 (a) the conviction; and 17 (b) any penalty imposed; and 18 (c) the nature of the offence. 19 20 Secrecy 456.(1) A person who is, or at any time was, engaged in the 21 administration of this Act or a former Act must not, other than as provided 22 by this section, record, make use of or divulge information obtained in the 23 course of the administration. 24 Maximum penalty--60 penalty units. 25 (2) Subsection (1) does not apply to-- 26 (a) the recording, making use of or divulging of information in the 27 course of the administration of this Act; or 28 (b) the recording or making use of information for divulging it as 29 permitted by subsection (3) or (4); or 30

 


 

s 456 252 s 456 Cooperatives (c) the divulging of information as permitted by subsection (3) 1 or (4). 2 (3) Information may be divulged-- 3 (a) for a criminal proceeding; or 4 (b) for a proceeding under this Act or of an inquiry authorised by an 5 Act; or 6 (c) with the consent of the person to whom the information relates; 7 or 8 (d) under a requirement imposed under the Parliamentary 9 Commissioner Act 1974; or 10 (e) under a reciprocal arrangement under section 465.110 11 (4) Information may be divulged to-- 12 (a) the Minister; or 13 (b) the Treasurer; or 14 (c) the Commissioner of Stamp Duties; or 15 (d) the Auditor-General; or 16 (e) the Commissioner of Taxation, a Second Commissioner of 17 Taxation or a Deputy Commissioner of Taxation holding office 18 under a law of the Commonwealth; or 19 (f) the Australian Securities Commission; or 20 (g) the person who, under a law of another State, administers a law 21 of the State that relates to taxation or the imposition of a duty; or 22 (h) the Criminal Justice Commission if-- 23 (i) the registrar has received a written request for information 24 from the commission; and 25 (ii) the Minister has given written approval to the registrar of the 26 communication of the information; and 27 (iii) the registrar has given to the person written approval of the 28 communication of the information; or 29 110 Section 465 (Reciprocal arrangements)

 


 

s 457 253 s 457 Cooperatives (i) a person seeking information under a reciprocal arrangement 1 under section 465; or 2 (j) a police officer exercising functions as a police officer; or 3 (k) a person nominated by a person mentioned in paragraphs (a) 4 to (g); or 5 (l) a person, to whom the registrar considers it is in the public 6 interest that the information be divulged. 7 (5) For this section, a person is, or was, engaged in the administration of 8 this Act or a former Act if the person exercises, or at any time exercised, a 9 function as-- 10 (a) the registrar holding office under this Act or a former Act; or 11 (b) an inspector appointed under this Act or a former Act; or 12 (c) an investigator appointed under this Act; or 13 (d) a person appointed or employed for this Act or a former Act. 14 (6) In this section-- 15 "divulge", in relation to information, means-- 16 (a) communicate the information orally; or 17 (b) make available a document containing the information; or 18 (c) make available anything from which, by electronic process or 19 otherwise, the information may be obtained; or 20 (d) communicate the information in another way. 21 "former Act" means-- 22 (a) the Cooperative and Other Societies Act 1967; or 23 (b) the Primary Producers' Cooperative Associations Act 1923. 24 or misleading statements 25 False 457.(1) A person must not, in a document required for this Act or filed 26 with the registrar, make, or authorise the making of, a statement knowing it 27 to be false or misleading in a material particular. 28 Maximum penalty--120 penalty units. 29

 


 

s 458 254 s 458 Cooperatives (2) A person must not, from a document required for this Act or filed 1 with the registrar, omit, or authorise the omission of, anything knowing that 2 the omission makes the document false or misleading in a material 3 particular. 4 Maximum penalty--120 penalty units. 5 (3) A person who, in a document required for this Act or filed with the 6 registrar, makes, or authorises the making of, a statement that is false or 7 misleading in a material particular commits an offence, unless it is proved 8 that the person had taken reasonable precautions aimed at avoiding the 9 making or authorising of false or misleading statements in the document. 10 Maximum penalty--60 penalty units. 11 (4) If an omission makes a document required for this Act or filed with 12 the registrar false or misleading in a material particular, a person who made 13 or authorised the omission commits an offence, unless it is proved that the 14 person had taken reasonable precautions aimed at avoiding the making or 15 authorising of omissions that would make the document false or 16 misleading. 17 Maximum penalty--60 penalty units. 18 offence for failure to do required act 19 Further 458.(1) If a provision of this Act requires an act to be done, the 20 obligation to do the act continues until the act is done-- 21 (a) even if the person has been convicted of an offence for the failure 22 to do the act; and 23 (b) even if the provision required the act to be done within a particular 24 period or before a particular time and the period has ended or the 25 time passed. 26 (2) If a person is convicted of an offence (a "primary conviction") for a 27 failure to do an act (whether it is the first or a second or subsequent offence 28 in relation to the failure) and the failure to do the act continues after the time 29 of the conviction, the person commits a further offence for the continuing 30 failure. 31 (3) The further offence is constituted by the failure to do the act during 32 the period ("the further offence period") that starts with the primary 33

 


 

s 459 255 s 460 Cooperatives conviction and ends when a proceeding for the further offence is started or 1 the act concerned is done (whichever happens first). 2 (4) A proceeding for a further offence is taken to be started on the day the 3 information for the further offence is laid or an earlier day stated in the 4 information for the purpose. 5 (5) The maximum penalty for the further offence is the penalty worked 6 out by multiplying $50 by the number of days in the further offence period. 7 remedies 8 Civil 459.(1) If a cooperative in making, guaranteeing or raising a loan or 9 receiving a deposit contravenes this Act or a rule of the cooperative, the civil 10 rights and liabilities of the cooperative or another person in relation to the 11 recovery of the loan or deposit are not affected or prejudiced by the 12 contravention, but the money becomes immediately payable. 13 (2) The same remedies may be had for the recovery of the loan or 14 deposit and for the enforcement of any security for it as if there had not 15 been a contravention of this Act or the rules of the cooperative. 16 njunctions 17 I 460.(1) This section applies to conduct that constituted, constitutes or 18 would constitute-- 19 (a) a contravention of this Act; or 20 (b) attempting to contravene this Act; or 21 (c) aiding, abetting, counselling or procuring a person to contravene 22 this Act; or 23 (d) inducing or attempting to induce, whether by threats, promises or 24 otherwise, a person to contravene this Act; or 25 (e) being in any way, directly or indirectly, knowingly concerned in, 26 or party to, the contravention by a person of this Act; or 27 (f) conspiring with others to contravene this Act. 28 (2) On the application of-- 29 (a) the registrar; or 30

 


 

s 460 256 s 460 Cooperatives (b) a person whose interests have been, are or would be affected by 1 conduct that another person has engaged, is engaging or is 2 proposing to engage in; 3 the Supreme Court, if satisfied that conduct is conduct to which this section 4 applies, may grant an injunction, on the terms the court considers 5 appropriate, restraining a person from engaging in the conduct and, if the 6 court considers it desirable to do so, requiring the person to do any act or 7 thing. 8 (3) If the Supreme Court considers it desirable to do so, the court may 9 grant an interim injunction pending decision of the application. 10 (4) The Supreme Court may discharge or vary an injunction granted 11 under this section. 12 (5) The power of the Supreme Court to grant an injunction restraining a 13 person from engaging in conduct may be exercised-- 14 (a) whether or not it appears to the court that the person intends to 15 engage again, or to continue to engage, in the conduct; and 16 (b) whether or not the person has previously engaged in the conduct; 17 and 18 (c) whether or not there is an imminent danger of substantial damage 19 to a person if the first-mentioned person engages in the conduct. 20 (6) The power of the Supreme Court to grant an injunction requiring a 21 person to do an act or thing may be exercised-- 22 (a) whether or not it appears to the court that the person intends to 23 refuse or fail again, or to continue to refuse or fail, to do the act or 24 thing; and 25 (b) whether or not the person has previously refused or failed to do 26 the act or thing; and 27 (c) whether or not there is an imminent danger of substantial damage 28 to any person if the first-mentioned person refuses or fails to do 29 the act or thing. 30 (7) If the Supreme Court has power under this section to grant an 31 injunction restraining a person from engaging in particular conduct, or 32 requiring a person to do a particular act or thing, the court may, either in 33

 


 

s 461 257 s 463 Cooperatives addition to or in substitution for the grant of the injunction, order the person 1 to pay damages to another person. 2 for offences etc. 3 Proceedings 461.(1) A proceeding for an offence under this Act may be instituted in a 4 summary way under the Justices Act 1886 within 3 years after the alleged 5 commission of the offence. 6 (2) A proceeding for the recovery of a fine or penalty imposed by the 7 rules of a cooperative may be instituted only by the cooperative. 8 ART 18--GENERAL 9 P ceasing to exist 10 Cooperative 462.(1) As soon as practicable after a cooperative is dissolved or has 11 otherwise ceased to exist, the registrar must register the dissolution and 12 cancel the registration of the cooperative. 13 (2) The registrar may remove from a register kept by the registrar the 14 name of a cooperative that has been dissolved or otherwise ceased to exist. 15 (3) A cooperative that has transferred its engagements to another 16 cooperative is taken to have ceased to exist. 17 of documents on cooperative 18 Service 463.(1) A document may be served on a cooperative by post or by 19 leaving it at the registered office of the cooperative with a person who 20 appears to be aged 16 or more. 21 (2) A document may be served on a foreign cooperative-- 22 (a) by post; or 23 (b) by leaving it with a person who appears to be aged 16 or more 24 and is at a place where the foreign cooperative carries on business 25 in Queensland; or 26

 


 

s 464 258 s 464 Cooperatives (c) by leaving it at the registered office in Queensland of the foreign 1 cooperative registered under part 14.111 2 (3) For serving a document under this section by post, it is properly 3 addressed if-- 4 (a) for a cooperative--it is addressed to the registered office of the 5 cooperative; or 6 (b) for a foreign cooperative--it is addressed to a place in 7 Queensland where the foreign cooperative carries on business. 8 (4) This section does not affect the operation of a provision of a law or of 9 the rules of a court authorising a document to be served on a cooperative or 10 a foreign cooperative in another way. 11 on member of cooperative 12 Service 464.(1) A notice required under this Act to be given to a member of a 13 cooperative must be in writing. 14 (2) A notice or other document required under this Act to be given to a 15 member of a cooperative may be given-- 16 (a) personally; or 17 (b) by post; or 18 (c) by publishing the notice in a newspaper circulating generally in 19 Queensland or in the area served by the cooperative, if-- 20 (i) the cooperative is a non-trading cooperative; or 21 (ii) the member's whereabouts are unknown to the cooperative; 22 or 23 (iii) the registrar permits notice to be given to members of the 24 cooperative in that way. 25 (3) This section does not limit the Acts Interpretation Act 1954, 26 section 39. 27 111 Part 14 (Foreign cooperatives)

 


 

s 465 259 s 468 Cooperatives arrangements 1 Reciprocal 465.(1) If a reciprocal arrangement with another State is in force, the 2 registrar-- 3 (a) may, at the request of the appropriate official of the State, give the 4 official information or documents relating to a cooperative; and 5 (b) may ask the appropriate official of the State to give the registrar 6 documents or information relating to an organisation that, under 7 the arrangement, is an organisation corresponding to a 8 cooperative. 9 (2) A reciprocal arrangement with another State is an arrangement made 10 between the Minister and a representative of the government of the other 11 State under which it is agreed-- 12 (a) that the registrar will comply with a request mentioned in 13 subsection (1)(a); and 14 (b) that a request made by the registrar to an official designated in the 15 arrangement as the appropriate official for subsection (1)(b) will 16 be complied with. 17 of documents 18 Translations 466. A requirement imposed under this Act to give or file a document or 19 make a document available for inspection is, for a document that is not in 20 the English language, taken to include a requirement that a translation of the 21 document be given, filed or made available for inspection at the same time. 22 of forms 23 Approval 467. The registrar may approve forms for use under this Act. 24 making power 25 Regulation 468.(1) The Governor in Council may make regulations under this Act. 26 (2) A regulation may provide for any of the following-- 27 (a) the making of applications for the exercise of a power by the 28 registrar; 29

 


 

s 469 260 s 472 Cooperatives (b) how to file documents with the registrar, including electronic 1 filing and filing by facsimile; 2 (c) fees to be paid in relation to the administration of this Act, 3 including-- 4 (i) fees for the filing of a document under this Act; and 5 (ii) additional fees for late filing of a document under this Act. 6 (3) A regulation may also create offences and impose penalties of not 7 more than 20 penalty units for an offence. 8 ART 19--REPEALS, AMENDMENT, SAVINGS AND 9 P TRANSITIONAL 10 of Cooperative and Other Societies Act 1967 11 Repeal 469. The Cooperative and Other Societies Act 1967 is repealed. 12 of Primary Producers' Cooperative Associations Act 1923 13 Repeal 470. The Primary Producers' Cooperative Associations Act 1923 is 14 repealed. 15 and transitional provisions 16 Savings 471. Schedules 5 and 6 have effect. 17 of other Acts 18 Amendment 472. Schedule 7 amends the Acts mentioned in it. 19 20

 


 

261 Cooperatives CHEDULE 1 1 S ATTERS FOR WHICH RULES MUST MAKE 2 M PROVISION 3 section 101 4 for all cooperatives 5 Requirements 1. The rules of all cooperatives must set out or make provision for each 6 of the following-- 7 (a) the name of the cooperative; 8 (b) active membership provisions (within the meaning of part 6);112 9 (c) the mode and conditions of admission to membership, and the 10 payment to be made, or the share or interest to be acquired, before 11 rights of membership are exercised; 12 (d) the rights and liabilities of members, and of the estates of 13 deceased members, and the rights and liabilities of representatives 14 of members under bankruptcy or mental incapacity; 15 (e) the circumstances in which members may be expelled or 16 suspended, and the rights and liabilities of expelled and 17 suspended members; 18 (f) the circumstances in which membership ceases; 19 (g) the charges or subscriptions payable by a member to the 20 cooperative; 21 (h) the circumstances in which fines and forfeitures may be imposed 22 on members of the cooperative, and the amount of the fines, 23 being not more than the maximum amount prescribed under a 24 regulation; 25 (i) the grievance procedures for settling disputes under the rules 26 112 Part 6 (Active membership)

 


 

262 Cooperatives SCHEDULE 1 (continued) between the cooperative and any of its members as defined in 1 section 82,113 or between a member and another member; 2 (j) the restrictions, if any, on the powers of the cooperative and the 3 board; 4 (k) the number of directors, the qualification of directors, and the way 5 of electing, remunerating and removing directors and filling a 6 vacancy, the period for which directors are to hold office, and 7 whether directors are to retire by rotation or otherwise, and for the 8 holding of annual elections; 9 (l) the quorum for meetings, and the procedure at meetings, of the 10 board; 11 (m) the device, custody and use of the seal of the cooperative; 12 (n) how the funds of the cooperative are to be managed, and in 13 particular the mode of drawing and signing cheques, drafts, bills 14 of exchange, promissory notes, and other negotiable instruments 15 for the cooperative; 16 (o) the custody of securities belonging to the cooperative; 17 (p) how debentures may be transferred; 18 (q) the date on which the financial year of the cooperative ends; 19 (r) the accounts of the cooperative to be audited annually or more 20 frequently and the way of appointment of the auditor; 21 (s) how a loss that may result from the transactions of the 22 cooperative is to be provided for; 23 (t) the way of calling general and special meetings, the requisite 24 notices of meetings, and the quorum for meetings, of the 25 cooperative; 26 (u) the procedure at meetings of the cooperative, including the rights 27 of members in voting at meetings, the way of voting, and the 28 majority necessary for carrying resolutions; 29 113 Section 82 (Grievance procedure)

 


 

263 Cooperatives SCHEDULE 1 (continued) (v) the method of conducting postal ballots, including special postal 1 ballots, including the sending and filing of information and votes 2 by facsimile or electronic means; 3 (w) the way of altering the rules; 4 (x) how the cooperative may be wound-up; 5 (y) a matter prescribed under a regulation for this section; 6 (z) another matter that to the cooperative appear necessary or 7 desirable. 8 matters--cooperatives with share capital 9 Additional 2. In addition to the matters specified in section 1, the rules of a 10 cooperative with a share capital must set out or make provision for each of 11 the following-- 12 (a) the nominal value of each share in the cooperative; 13 (b) the amount of the contingent liability, if any, attaching to shares; 14 (c) the terms on which shares, not including bonus shares, but 15 including shares, if any, with a contingent liability attached to 16 them are to be issued; 17 (d) the periodic subscriptions by which or how shares are to be paid 18 for; 19 (e) for a trading cooperative--how any surplus may be distributed; 20 (f) the allocation of a deficiency on the winding-up of a cooperative; 21 (g) the forfeiture of shares on expulsion or on failure to pay any 22 subscription or call, the extent to which members whose shares 23 have been forfeited are to remain liable for any amount still 24 unpaid for them, and the sale or cancellation of forfeited shares; 25 (h) how shares may be transferred; 26 (i) a matter prescribed under a regulation for this section. 27

 


 

264 Cooperatives SCHEDULE 1 (continued) matters--non-trading cooperatives 1 Additional 3. In addition to the matters specified in sections 1 and 2, the rules of a 2 non-trading cooperative must provide-- 3 (a) that there must be no return or distribution on surplus or share 4 capital to members other than the nominal value of shares, if any, 5 at winding-up; and 6 (b) for the way of distribution of the surplus property at winding-up. 7 8

 


 

265 Cooperatives CHEDULE 2 1 S RELEVANT INTERESTS, ASSOCIATES, RELATED 2 BODIES 3 section 5 4 ART 1--RELEVANT INTERESTS 5 P used in this part 6 Terminology 1.(1) This section applies for this part. 7 (2) Power to vote in relation to a right to vote is power to exercise, or to 8 control the exercise of, the right to vote. 9 (3) A reference to power to dispose of a share includes a reference to 10 power to exercise control over the disposal of the share. 11 (4) A reference to power or control includes a reference to power or 12 control that is direct or indirect or is, or can be, exercised because of, by 13 means of, in breach of, or by revocation of, trusts, agreements and 14 practices, or any of them, whether or not they are enforceable. 15 (5) Power to vote in relation to a right to vote, or power to dispose of a 16 share, that is exercisable by 2 or more persons jointly is taken to be 17 exercisable by either or any of the persons. 18 (6) A reference to a controlling interest includes a reference to an interest 19 that gives control. 20 rules--relevant interests 21 Basic 2.(1) A person who has power to vote in relation to a right to vote has a 22 relevant interest in the right to vote. 23 (2) A person who has power to dispose of a share has a relevant interest 24 in the share. 25

 


 

266 Cooperatives SCHEDULE 2 (continued) of corporation having power in relation to a share 1 Control 3. If a corporation has, or is by this part taken to have-- 2 (a) power to vote in relation to a right to vote; or 3 (b) power to dispose of a share; 4 a person is taken for this part to have in relation to the right to vote or share 5 the same power as the body has, or is taken to have, if-- 6 (c) the body is, or its directors are, accustomed or under an 7 obligation, whether formal or informal, to act under the 8 directions, instructions or wishes of the person in relation to the 9 exercise of the power mentioned in paragraph (a) or (b); or 10 (d) the person has a controlling interest in the body. 11 of 20% of voting power in corporation having power in 12 Control relation to a share 13 4. If a corporation or an associate of a corporation has, or is by this part 14 (other than this section) taken to have-- 15 (a) power to vote in relation to a right to vote; or 16 (b) power to dispose of a share; 17 a person is taken for this part to have in relation to the right to vote or share 18 the same power as the body or associate has, or is taken to have, if-- 19 (c) the person has; or 20 (d) an associate of the person has; or 21 (e) associates of the person together have; or 22 (f) the person and an associate or associates of the person together 23 have; 24 power to vote in relation to the right to vote attached to not less than 20% of 25 the voting shares in the body. 26

 


 

267 Cooperatives SCHEDULE 2 (continued) relevant interest in advance of performance of agreement that 1 Deemed will give rise to a relevant interest 2 5. If a person-- 3 (a) has entered into an agreement with another person with respect to 4 an issued share or right to vote in which the other person has a 5 relevant interest; or 6 (b) has a right enforceable against another person in relation to an 7 issued share or right to vote in which the other person has a 8 relevant interest, whether the right is enforceable presently or in 9 the future and whether or not on the fulfilment of a condition; or 10 (c) has an option granted by another person, or has granted to another 11 person an option, with respect to an issued share or right to vote 12 in which the other person has a relevant interest; 13 and, on performance of the agreement, enforcement of the right, or exercise 14 of the option, the first-mentioned person would have a relevant interest in 15 the share or right to vote, the first-mentioned person is taken for this part to 16 have that relevant interest in the share or right to vote. 17 of corporation having a relevant interest by virtue of s 5 18 Control 6. If a corporation is by section 5 taken to have a relevant interest in a 19 share in or right to vote at meetings of a cooperative, a person is taken for 20 this part to have a relevant interest in the share or right to vote if-- 21 (a) the corporation is, or its directors are, accustomed or under an 22 obligation, whether formal or informal, to act under the 23 directions, instructions or wishes of the person in relation to the 24 exercise of power to vote in relation to the right to vote or power 25 to dispose of the shares; or 26 (b) the person has a controlling interest in the corporation; or 27 (c) the person has power to vote in relation to the right to vote 28 attached to not less than 20% of the voting shares in the 29 corporation. 30

 


 

268 Cooperatives SCHEDULE 2 (continued) not affecting application of part 1 Matters 7.(1) It is immaterial for this part whether or not power to vote in relation 2 to a right to vote, or power to dispose of a share-- 3 (a) is express or implied or formal or informal; or 4 (b) is exercisable by a person alone or jointly with another person or 5 persons; or 6 (c) can not be related to a particular share; or 7 (d) is, or can be made, subject to restraint or restriction. 8 (2) A relevant interest in a share or right to vote is not to be disregarded 9 merely because of either or both of the following-- 10 (a) its remoteness; 11 (b) how it arose. 12 may have a relevant interest in its own shares 13 Corporation 8. A corporation may, by virtue of this part, be considered to have a 14 relevant interest in a share in or right to vote arising from membership of 15 the body itself. 16 17 Exclusions--money-lenders 9. A relevant interest of a person in a share or right to vote is to be 18 disregarded if the person's ordinary business includes lending money and 19 the person has authority to exercise powers as the holder of the relevant 20 interest only because of a security given for a transaction entered into in the 21 ordinary course of business in connection with lending money, other than a 22 transaction entered into with an associate of the person. 23 trustees 24 Exclusions--certain 10. A relevant interest of a person in a share or right to vote is to be 25 disregarded if-- 26 (a) the share or right is subject to a trust; and 27

 


 

269 Cooperatives SCHEDULE 2 (continued) (b) the person has the relevant interest as a trustee of the trust; and 1 (c) either-- 2 (i) a beneficiary under the trust is by section 5 114 taken to have 3 a relevant interest in the share or right because the 4 beneficiary has a presently enforceable and unconditional 5 right mentioned in section 5(b); or 6 (ii) the person is a bare trustee. 7 to securities dealer to dispose of share 8 Exclusions--instructions 11. A relevant interest of a person in a share or right to vote is to be 9 disregarded if-- 10 (a) the person's ordinary business includes dealing in securities; and 11 (b) the person has authority to exercise powers as the holder of the 12 relevant interest only because of instructions given to the person, 13 by or on behalf of another person, to dispose of the share on the 14 other person's behalf in the ordinary course of the business. 15 proxies 16 Exclusions--honorary 12. A relevant interest of a person in a share or right to vote is to be 17 disregarded if the person has it only because of having been appointed, 18 otherwise than for valuable consideration given by the person or an 19 associate of the person, to vote as a proxy or representative at a meeting of 20 members, or of a class of members, of a corporation. 21 of prescribed offices 22 Exclusions--holders 13. A relevant interest of a person in a share or right to vote is to be 23 disregarded if the person has it because of holding an office prescribed 24 under a regulation. 25 114 Schedule 2, section 5 (Deemed relevant interest in advance of performance of agreement that will give rise to a relevant interest)

 


 

270 Cooperatives SCHEDULE 2 (continued) exclusions 1 Prescribed 14. A regulation may provide that a relevant interest in a share is, in 2 specified circumstances and subject to specified conditions, if any, to be 3 disregarded for a provision of this Act. 4 of schedule 5 Effect 15.(1) Nothing in this schedule limits the generality of anything else in it. 6 (2) A person does not have a relevant interest in a share of a cooperative 7 or right to vote in relation to a cooperative except as provided in this 8 schedule. 9 interest--corporation other than cooperative 10 Relevant 16. A reference in this Act (including this schedule) to a relevant interest 11 in a share of a corporation other than a cooperative or a right to vote in 12 relation to a corporation other than a cooperative is to be construed under the 13 Corporations Law. 14 ART 2--ASSOCIATES 15 P of part 16 Effect 17. A person is not an associate of another person except as provided by 17 this part. 18 of a corporation 19 Associates 18. The associates of a corporation include the following-- 20 (a) a director or secretary of the body; 21 (b) a related corporation; 22 (c) a director or secretary of a related corporation. 23

 


 

271 Cooperatives SCHEDULE 2 (continued) relating to voting rights 1 Matters 19.(1) If a reference to an associate of a person relates to-- 2 (a) the extent of power to exercise, or to control the exercise of, the 3 voting power attached to voting shares in or arising from 4 membership of a corporation; or 5 (b) the person's entitlement to shares in a corporation; or 6 (c) an offer to purchase shares to which part 11, division 2115 7 applies; 8 the reference includes a reference to another person with whom the person 9 has, or proposes to enter into, an agreement mentioned in subsection (2). 10 (2) Subsection (1) applies to an agreement-- 11 (a) because of which 1 of the persons mentioned in subsection (1) 12 has, or will have, power (even if it is in any way qualified)-- 13 (i) to exercise; or 14 (ii) to control, directly or indirectly, the exercise of; or 15 (iii) to influence substantially the exercise of; 16 any voting power attached to shares in the body; or 17 (b) for the purpose of controlling or influencing-- 18 (i) the composition of the body's board; or 19 (ii) the conduct of affairs of the body; or 20 (c) under which one of the persons-- 21 (i) will or may acquire; or 22 (ii) may be required by the other to acquire; 23 shares in the body in which the other has a relevant interest; or 24 (d) under which 1 of the persons may be required to dispose of 25 shares in the body in accordance with the other's directions. 26 115 Part 11, division 2 (Restrictions on certain share offers)

 


 

272 Cooperatives SCHEDULE 2 (continued) (3) Subsection (1) applies despite any other effect the agreement may 1 have. 2 (4) In relation to a matter relating to shares in a corporation, a person 3 may be an associate of the body and the body may be an associate of a 4 person. 5 6 General 20.(1) A reference to an associate of a person includes a reference to-- 7 (a) another person in concert with whom the person is acting or 8 proposes to act; and 9 (b) another person who, under a regulation, is, for the purposes of the 10 provision in which the reference occurs, an associate of the 11 person; and 12 (c) another person with whom the person is or proposes to become 13 associated, whether formally or informally, in any other way; 14 in relation to the matter to which the reference relates. 15 (2) If a person has entered, or proposes to enter, into a transaction, or has 16 done, or proposes to do, an act or thing, in order to become associated with 17 another person as mentioned in an applicable provision of this part, a 18 reference to an associate of the person includes a reference to the other 19 person. 20 21 Exclusions 21. A person is not an associate of another person by virtue of section 19 22 or 20(1),116 or by virtue of section 20(2) as it applies in relation to 23 section 19 or 20(1), merely because of 1 or more of the following-- 24 (a) one gives advice to the other, or acts on the other's behalf, in the 25 proper performance of the functions attaching to a professional 26 capacity or a business relationship; 27 116 Schedule 2, section 19 (Matters relating to voting rights) or 20 (General)

 


 

273 Cooperatives SCHEDULE 2 (continued) (b) one, a client, gives specific instructions to the other, whose 1 ordinary business includes dealing in securities, to acquire shares 2 on the client's behalf in the ordinary course of that business; 3 (c) one has made, or proposes to make, to the other an offer to which 4 part 11, division 2117 applies, in relation to shares held by the 5 other; 6 (d) one has appointed the other, otherwise than for valuable 7 consideration given by the other or by an associate of the other, to 8 vote as a proxy or representative at a meeting of members, or of a 9 class of members, of a corporation. 10 ART 3--RELATED BODIES 11 P bodies corporate 12 Related 22. For this Act, a corporation is to be taken to be related to-- 13 (a) another corporation that is its subsidiary; and 14 (b) another corporation of which it is a subsidiary; and 15 (c) another corporation if both it and that other corporation are 16 subsidiaries of the same corporation. 17 18 117 Part 11, division 2 (Restrictions on certain share offers)

 


 

274 Cooperatives CHEDULE 3 1 S EGISTRATION ETC. OF CHARGES 2 R section 262 3 PART 1--PRELIMINARY 4 5 Interpretation 1. In this part-- 6 "cooperative" includes a foreign cooperative registered under part 14.118 7 "document of title" means a document-- 8 (a) used in the ordinary course of business as proof of possession or 9 control, or of the right to possession or control, of property other 10 than land; or 11 (b) authorising or purporting to authorise, whether by endorsement 12 or delivery, the possessor of the document to transfer or receive 13 property other than land; 14 and includes-- 15 (c) a bill of lading; and 16 (d) a storer's certificate; and 17 (e) a wharfinger's certificate; and 18 (f) a warrant or order for the delivery of goods; and 19 (g) a document that is, or evidences title to, a marketable security. 20 "marketable security" see the Corporations Law. 21 "present liability", in relation to a charge, means a liability that has arisen, 22 being a liability the extent or amount of which is fixed or capable of 23 118 Part 14 (Foreign cooperatives)

 


 

275 Cooperatives SCHEDULE 3 (continued) being ascertained, whether or not the liability is immediately due to be 1 met. 2 "property", in relation to a cooperative, means property within Queensland 3 held by the cooperative, whether or not as trustee. 4 "prospective liability", in relation to a charge, means any liability that may 5 arise in the future, or any other liability, but does not include a present 6 liability. 7 "registrable charge" means a charge in relation to which, by virtue of 8 section 4,119 the provisions of this schedule mentioned in section 4(1) 9 apply. 10 to charges mentioned in s 17 11 Application 2.(1) A charge mentioned in section 17120 is, until the charge is 12 registered, to be treated for this schedule as if it were not a registrable charge 13 but, when the charge is registered, it has the priority accorded to a registered 14 charge as from the time of registration. 15 (2) The registration of a charge mentioned in section 17 does not 16 prejudice any priority that would have been accorded to the charge under 17 another law (whether or not a law of a place in Australia) if the charge had 18 not been registered. 19 of documents 20 Filing 3. For this schedule, a notice or other document is taken to be filed when 21 it is received at the office of the registrar by an officer authorised to receive 22 it. 23 119 Schedule 3, section 4 (To which charges does schedule apply) 120 Schedule 3, section 17 (Acquisition of property subject to charge)

 


 

276 Cooperatives SCHEDULE 3 (continued) ART 2--REGISTRATION 1 P 1--Charges 2 Division which charges does schedule apply 3 To 4.(1) Subject to this division, the provisions of this schedule relating to 4 the giving of notice in relation to, the registration of, and the priorities of, 5 charges-- 6 (a) apply in relation to the charges mentioned in subsection (2) 7 (whether legal or equitable) on property of a cooperative; and 8 (b) do not apply in relation to other charges. 9 (2) Subsection (1) applies to the following charges-- 10 (a) a floating charge on the whole or a part of the property, business 11 or undertaking of the cooperative; 12 (b) a charge on uncalled share capital or uncalled share premiums; 13 (c) a charge on a call, whether for share capital or share premiums, 14 made but not paid; 15 (d) a charge on a personal chattel, including a personal chattel that is 16 unascertained or is to be acquired in the future, but not including a 17 ship registered in an official register kept under a law of a place in 18 Australia relating to title to ships; 19 (e) a charge on goodwill, on a patent or licence under a patent, on a 20 trade mark or service mark or a licence to use a trade mark or 21 service mark, on a copyright or a licence under a copyright or on 22 a registered design or a licence to use a registered design; 23 (f) a charge on a book debt; 24 (g) a charge on a marketable security, not being-- 25 (i) a charge created in whole or in part by the deposit of a 26 document of title to the marketable security; or 27 (ii) a mortgage under which the marketable security is registered 28

 


 

277 Cooperatives SCHEDULE 3 (continued) in the name of the chargee or a person nominated by the 1 chargee; 2 (h) a lien or charge on a crop, a lien or charge on wool or a stock 3 mortgage; 4 (i) a charge on a negotiable instrument other than a marketable 5 security. 6 charges 7 Excluded 5. The provisions of this schedule mentioned in section 4(1) do not apply 8 in relation to-- 9 (a) a charge, or a lien over property, arising by operation of law; or 10 (b) a pledge of a personal chattel or of a marketable security; or 11 (c) a charge created in relation to a negotiable instrument or a 12 document of title to goods, being a charge by way of pledge, 13 deposit, letter of hypothecation or trust receipt; or 14 (d) a transfer of goods in the ordinary course of the practice of a 15 profession or the carrying on of any trade or business; or 16 (e) a dealing, in the ordinary course of the practice of a profession or 17 the carrying on of a trade or business, for goods outside 18 Australia. 19 chattels 20 Personal 6. The reference in section 4(2)(d)121 to a charge on a personal chattel is a 21 reference to a charge on an article capable of complete transfer by delivery, 22 whether at the time of the creation of the charge or at some later time, and 23 includes a reference to a charge on a fixture or a growing crop that is 24 charged separately from the land to which it is affixed or on which it is 25 growing, but does not include a reference to a charge on-- 26 (a) a document evidencing title to land; or 27 121 Schedule 3, section 4 (To which charges does schedule apply)

 


 

278 Cooperatives SCHEDULE 3 (continued) (b) a chattel interest in land; or 1 (c) a marketable security; or 2 (d) a document evidencing a thing in action; or 3 (e) stock or produce on a farm or land that because of a covenant or 4 agreement ought not to be removed from the farm or land where 5 the stock or produce is at the time of the creation of the charge. 6 debts 7 Book 7. The reference in section 4(2)(f)122 to a charge on a book debt-- 8 (a) is a reference to a charge on a debt payable or to become payable 9 to the cooperative at some future time on account of or in 10 connection with a profession, trade or business carried on by the 11 cooperative, whether entered in a book or not; and 12 (b) includes a reference to a charge on a future debt of the same 13 nature although not incurred or owing at the time of the creation 14 of the charge; 15 but does not include a reference to a charge on a marketable security, on a 16 negotiable instrument or on a debt owing for a mortgage, charge or lease of 17 land. 18 or stock 19 Crops 8. The reference in section 4(2)(h)123 to a lien or charge on a crop, a lien 20 or charge on wool or a stock mortgage includes a reference to a security 21 (however described) that is registrable under a law of a State prescribed 22 under a regulation. 23 122 Schedule 3, section 4 (To which charges does schedule apply) 123 Schedule 3, section 4 (To which charges does schedule apply)

 


 

279 Cooperatives SCHEDULE 3 (continued) of documents of title 1 Deposit 9. For this division, a cooperative is taken to have deposited a document 2 of title to property with another person (the "chargee") in a case where the 3 document of title is not in the possession of the cooperative if-- 4 (a) the person who holds the document of title acknowledges in 5 writing that the person holds the document of title on behalf of the 6 chargee; or 7 (b) a government, an authority or a corporation that proposes to issue 8 a document of title in relation to the property agrees, in writing, to 9 deliver the document of title, when issued, to the chargee. 10 on land or fixtures on land 11 Charges 10.(1) The provisions of this schedule mentioned in subsection 4(1)124 12 do not apply in relation to a charge on land. 13 (2) The provisions of this schedule mentioned in section 4(1) do not 14 apply in relation to a charge on fixtures given by a charge on the land to 15 which they are affixed. 16 if other property is also charged 17 What 11. For this division, a charge is taken to be a charge on property of a 18 kind to which a particular paragraph of section 4(2)125 applies even though 19 the instrument of charge also charges other property of the cooperative, 20 including other property that is of a kind to which none of the paragraphs of 21 section 4(2) applies. 22 of failure to file or give notice or document 23 Effect 12. A charge on property of a cooperative is not invalid merely because 24 of the failure to file with the registrar, or give to the cooperative or another 25 124 Schedule 3, section 4 (To which charges does schedule apply) 125 Schedule 3, section 4 (To which charges does schedule apply)

 


 

280 Cooperatives SCHEDULE 3 (continued) person, a notice or other document that is required by this part to be so filed 1 or given. 2 Division 2--Notice of charge 3 of notice of charge and copy of instrument 4 Filing 13.(1) If a cooperative creates a charge, the cooperative must ensure that 5 there is filed with the registrar, within 45 days after the creation of the 6 charge, a notice in the approved form setting out the following particulars-- 7 (a) the name of the cooperative and the date of the creation of the 8 charge; 9 (b) whether the charge is a fixed charge, a floating charge or both a 10 fixed and floating charge; 11 (c) if the charge is a floating charge--whether there is a provision in 12 the resolution or instrument creating or evidencing the charge that 13 prohibits or restricts the creation of subsequent charges; 14 (d) a short description of the liability (whether present or prospective) 15 secured by the charge; 16 (e) a short description of the property charged; 17 (f) whether the charge is created or evidenced by a resolution, by an 18 instrument or by a deposit or other conduct; 19 (g) if the charge is constituted by the issue of a debenture or 20 debentures--the name of the trustee, if any, for debenture 21 holders; 22 (h) if the charge is not constituted by the issue of a debenture or 23 debentures or there is no trustee for debenture holders--the name 24 of the chargee; 25 (i) other information that is prescribed under a regulation. 26 (2) If, under a resolution or resolutions passed by the cooperative, the 27 cooperative issues a series of debentures constituting a charge to the benefit 28 of which all the holders of debentures in the series are entitled in equal 29

 


 

281 Cooperatives SCHEDULE 3 (continued) priority, and the charge is evidenced only by the resolution or resolutions 1 and the debentures, the notice under subsection (1) must be accompanied 2 by-- 3 (a) a copy of the resolution or of each of the resolutions verified by a 4 statement in writing to be a true copy; and 5 (b) a copy of the first debenture issued in the series and a statement in 6 writing verifying the execution of the first debenture. 7 (3) If, in a case to which subsection (2) does not apply, the charge created 8 by the cooperative was created or evidenced by an instrument or 9 instruments, the notice under subsection (1) must be accompanied by-- 10 (a) the instrument or each of the instruments; or 11 (b) a copy of the instrument or of each of the instruments verified by 12 a statement in writing to be a true copy, and a statement in writing 13 verifying the execution of the instrument or of each of the 14 instruments. 15 of debentures 16 Series 14. In a case to which section 13(2) applies-- 17 (a) the charge is, for section 13, taken to be created when the first 18 debenture in the series of debentures is issued; and 19 (b) if, after the issue of the first debenture in the series, the 20 cooperative passes a further resolution authorising the issue of 21 debentures in the series--the cooperative must ensure that a copy 22 of the resolution, verified by a statement in writing to be a true 23 copy of the resolution, is filed within 45 days after the passing of 24 the resolution. 25 of priority provisions in relation to issue of debentures 26 Operation 15. If a notice with respect to an instrument creating a charge has been 27 filed under section 13(1),126 being a charge in relation to an issue of several 28 126 Schedule 3, section 13 (Filing of notice of charge and copy of instrument)

 


 

282 Cooperatives SCHEDULE 3 (continued) debentures the holders of which are entitled under the instrument in equal 1 priority to the benefit of the charge, sections 46 to 49127 have effect as if any 2 charges constituted by the debentures were registered at the time when the 3 charge to which the notice relates was registered. 4 iscounts 5 D 16.(1) If a payment or discount has been made or allowed, either directly 6 or indirectly, by a cooperative to a person in consideration of the person's 7 subscribing or agreeing to subscribe, whether absolutely or conditionally, 8 for debentures, or procuring or agreeing to procure subscriptions, whether 9 absolute or conditional, for debentures, the notice required to be filed under 10 section 13(1)128 must include particulars as to the amount or rate per cent of 11 the payment or discount. 12 (2) If a cooperative issues debentures as security for a debt of the 13 cooperative, the cooperative is not taken, for subsection (1), to have allowed 14 a discount in relation to the debentures. 15 of property subject to charge 16 Acquisition 17.(1) If a cooperative acquires property subject to a charge, being a 17 charge that would have been registrable when it was created if it had been 18 created by a cooperative, the cooperative must, within 45 days after the 19 acquisition of the property-- 20 (a) ensure that there is filed with the registrar a notice in the approved 21 form in relation to the charge, setting out-- 22 (i) the name of the cooperative; and 23 (ii) the date on which the property was so acquired; and 24 (iii) other particulars required by section 13(1);129 and 25 (b) give to the chargee notice that it has acquired the property and the 26 127 Schedule 3, sections 46 (Priorities of charges) to 49 (Special priority rules) 128 Schedule 3, section 13 (Filing of notice of charge and copy of instrument) 129 Schedule 3, section 13 (Filing of notice of charge and copy of instrument)

 


 

283 Cooperatives SCHEDULE 3 (continued) date on which it was so acquired. 1 (2) If the charge mentioned in subsection (1) was created or evidenced as 2 mentioned in section 13(2), the notice under subsection (1)(a) must be 3 accompanied by-- 4 (a) a copy of the resolution or of each of the resolutions mentioned in 5 section 13(2) verified by a statement in writing to be a true copy; 6 and 7 (b) a copy of the first debenture issued in the series mentioned in 8 section 13(2) verified by a statement in writing to be a true copy. 9 (3) If the charge mentioned in subsection (1) was created or evidenced by 10 an instrument or instruments (otherwise than as mentioned in 11 section 13(2)), the notice under subsection (1)(a) must be accompanied 12 by-- 13 (a) the instrument or each of the instruments; or 14 (b) a copy of the instrument or of each of the instruments verified by 15 a statement in writing to be a true copy. 16 3--Registration 17 Division of cooperative charges 18 Register 18. The registrar must keep a register to be known as the register of 19 cooperative charges. 20 of documents relating to charge 21 Registration 19.(1) If a notice is filed with the registrar under division 2,130 the 22 registrar must as soon as practicable cause to be entered in the register the 23 time and date when the notice was filed and the following particulars in 24 relation to the charge-- 25 (a) if the charge is a charge created by the cooperative--the date of its 26 130 Schedule 3, division 2 (Notice of charge)

 


 

284 Cooperatives SCHEDULE 3 (continued) creation; 1 (b) if the charge was a charge existing on property acquired by the 2 cooperative--the date on which the property was so acquired; 3 (c) a short description of the liability (whether present or prospective) 4 secured by the charge; 5 (d) a short description of the property charged; 6 (e) the name of the trustee for debenture holders or, if there is no 7 trustee for debenture holders, the name of the chargee. 8 (2) Subsection (1) only applies if the notice contains the required 9 particulars and is accompanied by the required documents. 10 (3) Subsection (1) applies whether the notice is filed during or after the 11 period within which the notice is required to be filed. 12 (4) Subject to this division, if particulars of a charge are entered in the 13 register under subsection (1), the charge is taken to be registered, and to 14 have been registered, from and including the time and date entered in the 15 register under the subsection. 16 (5) The registrar may enter in the register in relation to a charge, in 17 addition to the particulars expressly required by this division to be entered, 18 other particulars the registrar considers appropriate. 19 registration if stamp duty not paid 20 Provisional 20.(1) If-- 21 (a) a notice in relation to a charge on property of a cooperative is filed 22 under division 2;131 and 23 (b) the notice is not accompanied by a certificate to the effect that all 24 documents accompanying the notice have been properly stamped 25 as required by any applicable law relating to stamp duty; 26 the registrar must cause to be entered in the register the time and date when 27 the notice was filed and the particulars mentioned in section 19(1)(a) to (e), 28 131 Schedule 3, division 2 (Notice of charge)

 


 

285 Cooperatives SCHEDULE 3 (continued) but must cause the word `provisional' to be entered in the register next to 1 the entry specifying that time and date. 2 (2) Subsection (1) applies whether the notice was filed during or after the 3 period within which the notice was required to be filed. 4 (3) The registrar must delete the word `provisional' entered in the register 5 under subsection (1) from an entry relating to a charge if a certificate to the 6 effect set out in subsection (1)(b) has been produced to the registrar-- 7 (a) within a period of 28 days after the notice was filed or, if a longer 8 period is prescribed under a regulation, the period; or 9 (b) within the further period the registrar, if the registrar considers it 10 appropriate in a particular case, allows. 11 (4) The registrar must delete from the register all the particulars that were 12 entered in relation to a charge if-- 13 (a) the word `provisional' is entered in the register under 14 subsection (1) in relation to an entry relating to the charge; and 15 (b) a certificate to the effect set out in subsection (1)(b) is not 16 produced within the period, or the further period, mentioned in 17 subsection (3). 18 registration if required particulars not supplied 19 Provisional 21.(1) If a defective notice in relation to a charge on property is filed with 20 the registrar under section 19,132 the registrar must cause to be entered in 21 the register-- 22 (a) the time and date when the document was filed; and 23 (b) the particulars mentioned in section 19(1)(a) to (e) that are 24 ascertainable; and 25 (c) the word `provisional' next to the entry specifying the time and 26 date. 27 (2) If a defective notice in relation to a charge is filed under section 19, 28 132 Schedule 3, section 19 (Registration of documents relating to charge)

 


 

286 Cooperatives SCHEDULE 3 (continued) the registrar must, by written notice to the person who filed the defective 1 notice, direct the person to ensure that there is filed, on or before the day 2 specified in the notice, a notice in relation to the charge that complies with 3 the requirements of division 2.133 4 (3) Subsections (1) and (2) apply whether the defective notice was filed 5 during or after the period within which the notice was required to be filed. 6 (4) The giving by the registrar of a direction to the person under 7 subsection (2) does not affect any liability that the cooperative may have 8 incurred or may incur because of a contravention of division 2. 9 (5) If the registrar gives a direction to a person under subsection (2) in 10 relation to a charge and the direction is complied with on or before the day 11 specified in the notice containing the direction, the registrar must-- 12 (a) delete from the register the word `provisional' that was inserted 13 under subsection (1); and 14 (b) cause to be entered in the register in relation to the charge any 15 particulars mentioned in section 19(1) that have not previously 16 been entered. 17 (6) If the registrar gives a direction to a person under subsection (2) in 18 relation to a charge and the direction is not complied with on or before the 19 day specified in the notice, the registrar must delete from the register all the 20 particulars that were entered in relation to the charge. 21 (7) If the registrar gives a direction to a person under subsection (2) in 22 relation to a charge and the direction is complied with after the day specified 23 in the notice, the registrar must cause to be entered in the register in relation 24 to the charge-- 25 (a) the time at which and day on which the direction was complied 26 with; and 27 (b) the particulars mentioned in section 19 (1)(a) to (e). 28 (8) In this section-- 29 "defective notice" means a document that-- 30 133 Schedule 3, division 2 (Notice of charge)

 


 

287 Cooperatives SCHEDULE 3 (continued) (a) purports to be a notice of a charge on property of a cooperative 1 for the purposes of division 2; and 2 (b) contains the name of the cooperative concerned and the particulars 3 mentioned in section 13(1)(g) or (h);134 4 but does not contain some or all of the other particulars required to be 5 included in the notice or is otherwise defective. 6 of provisional registration 7 Effect 22.(1) Subject to this section, if the word `provisional' is entered in the 8 register next to an entry specifying a time and day in relation to a charge, the 9 charge is taken not to have been registered. 10 (2) If the word `provisional' is deleted from the register under section 20 11 or 21(5), 135 the charge is taken to be registered and to have been registered 12 from and including the time and day specified in the register under section 13 20 or 21(1). 14 (3) If the particulars in relation to the charge are deleted from the register 15 under section 21(6) and the particulars and a time and day are subsequently 16 entered in the register in relation to the charge under section 21(7), the 17 charge is taken to be registered from and including the last-mentioned time 18 and day. 19 if 2 or more charges relate to the same property 20 What 23.(1) If, under section 17,136 a cooperative files notices relating to 2 or 21 more charges on the same property acquired by the cooperative (being 22 charges that are not already registered under this division), the time and day 23 to be entered in the register in relation to each of the charges are the time and 24 day when the first notice was filed. 25 134 Schedule 3, section 13 (Filing of notice of charge and copy of instrument) 135 Schedule 3, section 20 (Provisional registration if stamp duty not paid) or 21 (Provisional registration if required particulars not supplied) 136 Schedule 3, section 17 (Acquisition of property subject to charge)

 


 

288 Cooperatives SCHEDULE 3 (continued) (2) If, under subsection (1), the time and day that are entered in the 1 register are the same in relation to 2 or more charges on property acquired 2 by a cooperative, the charges are to have, as between themselves, the 3 respective priorities that they would have had if they had not been registered 4 under this division. 5 of assignment or variation of charge 6 Registration 24.(1) If a notice is filed under section 36,137 the registrar must as soon 7 as practicable cause to be entered in the register the time and day when the 8 notice was so filed and the particulars set out in the notice. 9 (2) Subsection (1) applies whether the notice was filed during or after the 10 period within which the notice was required to be filed. 11 time for the purposes of this division 12 Standard 25.(1) The registrar may, by gazette notice, declare a specified standard 13 time to be the standard time for this division. 14 (2) If a notice is in force under subsection (1), a reference in this division 15 to entering the time when a particular event happened is a reference to 16 entering the time as expressed in terms of the standard time specified in the 17 notice. 18 Division 4--Certain charges void against liquidator or administrator 19 20 Definitions 26. In this division-- 21 "critical day", in relation to a cooperative, means-- 22 (a) if the cooperative is being wound-up--the day when the 23 winding-up began; or 24 137 Schedule 3, section 36 (Assignment and variation of charges)

 


 

289 Cooperatives SCHEDULE 3 (continued) (b) if the cooperative is under administration--the relevant day in 1 relation to the administration; or 2 (c) if the cooperative has executed a deed of arrangement--the 3 relevant day in relation to the administration that ended when the 4 deed was executed. 5 "relevant day", in relation to the administration of a cooperative, means-- 6 (a) if, when the administration began, a winding-up of the 7 cooperative was in progress--the day on which the winding-up is 8 taken because of the Corporations Law, part 5.6, division 1A (as 9 adopted and applying under this Act) to have begun; or 10 (b) otherwise--the day on which the administration began. 11 charges void against liquidator or administrator 12 Certain 27.(1) Subject to this division, if-- 13 (a) an order is made, or a resolution is passed, for the winding-up of 14 a cooperative; or 15 (b) the registrar gives a certificate under section 307138 for the 16 winding-up of the cooperative; or 17 (c) an administrator of a cooperative is appointed under the 18 Corporations Law, part 5.3A as adopted and applying under this 19 Act; or 20 (d) a cooperative executes a deed of arrangement; 21 a registrable charge on property of the cooperative is void as a security on 22 the property as against the liquidator, the administrator of the cooperative, or 23 the deed's administrator, as the case may be. 24 (2) A charge is not void under subsection (1) if-- 25 (a) a notice of the charge was filed under section 13 or 17139-- 26 138 Section 307 (Winding-up on registrar's certificate) 139 Schedule 3, section 13 (Filing of notice of charge and copy of instrument) or 17 (Acquisition of property subject to charge)

 


 

290 Cooperatives SCHEDULE 3 (continued) (i) within the relevant period; or 1 (ii) at least 6 months before the critical day; or 2 (b) the period within which a notice of the charge (other than a notice 3 under section 36140 ) is required to be filed, being the period 4 specified in the relevant section or the period as extended by the 5 Supreme Court under section 29,141 has not ended at the start of 6 the critical day and the notice is filed before the end of the period; 7 or 8 (c) for a charge to which section 17 applies--the period of 45 days 9 after the chargee becomes aware that the property charged has 10 been acquired by a cooperative has not ended at the start of the 11 critical day and the notice is filed before the end of the period. 12 (3) The reference in subsection (2)(a) to the relevant period is to be 13 construed as a reference to-- 14 (a) for a charge to which section 13 applies--the period of 45 days 15 specified in section 13, or the period as extended by the Supreme 16 Court under section 29; or 17 (b) for a charge to which section 17 applies--the period of 45 days 18 after the chargee becomes aware that the property has been 19 acquired by a cooperative. 20 varied charges void against liquidator or administrator 21 Certain 28.(1) Subject to this division, if, after there has been a variation in the 22 terms of a registrable charge on property of a cooperative having the effect 23 of increasing the amount of the debt or increasing the liabilities (whether 24 present or prospective) secured by the charge-- 25 (a) an order is made, or a resolution is passed, for the winding-up of 26 the cooperative; or 27 (b) an administrator of a cooperative is appointed under the 28 140 Schedule, section 36 (Assignment and variation of charges) 141 Schedule 3, section 29 (Supreme Court may extend required period)

 


 

291 Cooperatives SCHEDULE 3 (continued) Corporations Law, part 5.3A (as adopted and applying under this 1 Act); or 2 (c) a cooperative executes a deed of arrangement; 3 the registrable charge is void as a security on the property to the extent that it 4 secures the amount of the increase in the debt or liability. 5 (2) A charge is not void under subsection (1) if-- 6 (a) a notice of the variation was filed under section 36142-- 7 (i) within the period of 45 days specified in section 36(2), or the 8 period as extended by the Supreme Court under section 29; 9 or 10 (ii) within 6 months before the critical day; or 11 (b) the period of 45 days specified in section 36(2), or the period as 12 extended by the Supreme Court under section 29, has not ended 13 at the start of the critical day and the notice is filed before the end 14 of the period. 15 Court may extend required period 16 Supreme 29. If the Supreme Court is satisfied that-- 17 (a) the failure to file a notice of a charge, or of a variation in the terms 18 of a charge, as required by a provision of this schedule-- 19 (i) was accidental or due to inadvertence or some other 20 sufficient cause; or 21 (ii) is not of a nature to prejudice the position of creditors or 22 shareholders; or 23 (b) on other grounds it is just and equitable to grant relief; 24 the court may, on the application of the cooperative or a person interested 25 and on the terms and conditions the court considers just and expedient, by 26 order, extend the period for a further stated in the order. 27 142 Schedule 1, section 36 (Assignment and variation of charges)

 


 

292 Cooperatives SCHEDULE 3 (continued) later charges void 1 Certain 30.(1) Subject to subsection (3), if-- 2 (a) a registrable charge (the "later charge") is created before the end 3 of 45 days after the creation of an unregistered registrable charge 4 (the "earlier charge"); and 5 (b) the later charge relates to all or any of the property to which the 6 earlier charge related; and 7 (c) the later charge is given as a security for the same liability as is 8 secured by the earlier charge or any part of the liability; 9 the later charge, to the extent to which it is a security for the same liability or 10 part, and so far as it relates to the property comprised in the earlier charge, is 11 void as a security on the property as against a liquidator or administrator of 12 the cooperative, or an administrator of a deed of arrangement executed by 13 the cooperative. 14 (2) Subsection (1) applies even if a notice of the later charge was filed 15 under section 13143 within the period mentioned in section 27(2)(a).144 16 (3) Subsection (1) does not apply if it is proved to the satisfaction of the 17 Supreme Court that the later charge was given in good faith for the purpose 18 of correcting some material error in the earlier charge or under other proper 19 circumstances and not for the purposes of avoiding or evading the 20 provisions of this division. 21 of provisions on purchaser in good faith 22 Effect 31.(1) Nothing in section 27(1) or (2) or 28145 operates to affect the title 23 of a person to property purchased for value from a chargee or from a 24 receiver appointed by a chargee in the exercise of powers conferred by the 25 charge or implied by law if the person purchased the property in good faith 26 143 Schedule 3, section 13 (Filing of notice and copy of instrument) 144 Schedule 3, section 27 (Certain charges void against liquidator or administrator) 145 Schedule 3, section 27 (Certain charges void against liquidator or administrator) or 28 (Certain varied charges void against liquidator or administrator)

 


 

293 Cooperatives SCHEDULE 3 (continued) and without notice of-- 1 (a) the filing of an application for an order for the winding-up of the 2 cooperative; or 3 (b) the passing of the necessary resolution for the voluntary 4 winding-up of the cooperative; or 5 (c) an administrator of the cooperative being appointed under the 6 Corporations Law, part 5.3A (as adopted and applying under this 7 Act); or 8 (d) the cooperative executing a deed of arrangement. 9 (2) The onus of proving that a person purchased property in good faith 10 and without notice of any of the matters mentioned in subsection (1)(a), (b), 11 (c) and (d) is on the person asserting that the property was so purchased. 12 5--Certain charges in favour of persons void 13 Division 14 Definitions 32. In this division-- 15 "chargee", in relation to a charge, means-- 16 (a) in any case--the holder, or all or any of the holders, of the charge; 17 or 18 (b) for a charge that is an agreement to give or execute a charge in 19 favour of a person or persons, whether on demand or 20 otherwise--the person, or all or any of the persons. 21 "officer", of a cooperative, includes, for a foreign cooperative, a local agent 22 of the foreign cooperative. 23 "receiver" includes a receiver and manager. 24 "relevant person", in relation to a charge created by a cooperative, 25 means-- 26 (a) a person who is at the time when the charge is created, or who 27 has been at any time during the period of 6 months ending at the 28

 


 

294 Cooperatives SCHEDULE 3 (continued) time, an officer of the cooperative; or 1 (b) a person associated, in relation to the creation of the charge, with a 2 person of a kind mentioned in paragraph (a). 3 in favour of certain persons void in certain cases 4 Charges 33.(1) If-- 5 (a) a cooperative creates a charge on property of the cooperative in 6 favour of a person who is, or in favour of persons at least 1 of 7 whom is, a relevant person in relation to the charge; and 8 (b) within 6 months after the creation of the charge, the chargee 9 purports to take a step in the enforcement of the charge without 10 the Supreme Court having, under section 34, given leave for the 11 charge to be enforced; 12 the charge, and any powers purported to be conferred by an instrument 13 creating or evidencing the charge, are, and are taken always to have been, 14 void. 15 (2) Without limiting the generality of subsection (1), a person who-- 16 (a) appoints a receiver of property of a cooperative under powers 17 conferred by an instrument creating or evidencing a charge 18 created by the cooperative; or 19 (b) whether directly or by an agent, enters into possession or 20 assumes control of property of a cooperative for the purposes of 21 enforcing a charge created by the cooperative; 22 is to be taken, for subsection (1), to take a step in the enforcement of the 23 charge. 24 Court may give leave for enforcement of charge 25 Supreme 34. On application by the chargee under a charge, the Supreme Court 26 may give leave for the charge to be enforced, if the court is satisfied that-- 27 (a) immediately after the creation of the charge, the cooperative that 28 created the charge was solvent; and 29

 


 

295 Cooperatives SCHEDULE 3 (continued) (b) in all the circumstances of the case, it is just and equitable for the 1 court to do so. 2 transactions excluded 3 Certain 35.(1) Nothing in section 33146 affects a debt, liability or obligation of a 4 cooperative that would, if section 33 had not been enacted, have been 5 secured by a charge created by the cooperative. 6 (2) Nothing in section 33 operates to affect the title of a person to 7 property (other than the charge concerned or an interest in the charge 8 concerned) purchased for value from a chargee under a charge, from an 9 agent of a chargee under a charge, or from a receiver appointed by a chargee 10 under a charge in the exercise of powers conferred by the charge or implied 11 by law, if the person purchased the property in good faith and without 12 notice that the charge was created in favour of a person who is, or in favour 13 of persons at least 1 of whom is, as the case may be, a relevant person in 14 relation to the charge. 15 (3) The onus of proving that a person purchased property in good faith 16 and without notice that a charge was created as mentioned in subsection (2) 17 is on the person asserting that the property was so purchased. 18 Division 6--Assignment, variation or satisfaction of charges 19 and variation of charges 20 Assignment 36.(1) If, after a registrable charge on property of a cooperative has been 21 created, a person other than the original chargee becomes the holder of the 22 charge, the person who becomes the holder of the charge must, within 23 45 days after the person becomes the holder of the charge-- 24 (a) file a notice with the registrar stating that the person has become 25 the holder of the charge; and 26 146 Schedule 3, section 33 (Charges in favour of certain persons void in certain cases)

 


 

296 Cooperatives SCHEDULE 3 (continued) (b) give the cooperative a copy of the notice. 1 (2) If, after a registrable charge on property of a cooperative has been 2 created, there is a variation in the terms of the charge having the effect of-- 3 (a) increasing the amount of the debt or increasing the liabilities 4 (whether present or prospective) secured by the charge; or 5 (b) prohibiting or restricting the creation of subsequent charges on the 6 property; 7 the cooperative must, within 45 days after the variation occurs, ensure that 8 there is filed with the registrar a notice setting out particulars of the variation 9 and accompanied by the instrument, if any, effecting the variation or a 10 certified copy of the instrument. 11 (3) If a charge created by a cooperative secures a debt of an unspecified 12 amount or secures a debt of a specified amount and further advances, a 13 payment or advance made by the chargee to the cooperative under the terms 14 of the charge is not to be taken, for subsection (2), to be a variation in the 15 terms of the charge having the effect of increasing the amount of the charge 16 or the liabilities (whether present or prospective) secured by the charge. 17 (4) A reference in this section to the chargee in relation to a charge is, if 18 the charge is constituted by a debenture and there is a trustee for debenture 19 holders, to be construed as a reference to the trustee for debenture holders. 20 (5) Nothing in section 13147 requires the filing of a notice under 21 section 13 in relation to a charge merely because of the fact that the terms of 22 the charge are varied only in a way mentioned in this section. 23 of, and release of property from, charges 24 Satisfaction 37.(1) If, in relation to a charge registered under this part-- 25 (a) the debt or other liability, the payment or discharge of which was 26 secured by the charge, has been paid or discharged in whole or in 27 part; or 28 (b) the property charged or part of the property is released from the 29 147 Schedule 3, section 13 (Filing of notice of charge and copy of instrument)

 


 

297 Cooperatives SCHEDULE 3 (continued) charge; 1 the person who was the holder of the charge at the time when the debt or 2 other liability was so paid or discharged or the property or part of the 3 property was released must, within 14 days after receipt of a request in 4 writing made by the cooperative on whose property the charge exists, give 5 to the cooperative a memorandum in the approved form acknowledging that 6 the debt or other liability has been paid or discharged in whole or in part, or 7 that the property or the part of it is no longer subject to the charge, as the 8 case may be. 9 (2) The cooperative may file the memorandum with the registrar and, on 10 the memorandum being filed, the registrar must enter in the register 11 particulars of the matters stated in the memorandum. 12 (3) The reference in subsection (1) to the person who was the holder of a 13 charge at the time when the debt or other liability was so paid or discharged 14 or the property or part of the property was released is, if the charge was 15 constituted by a debenture or debentures and there was a trustee for 16 debenture holders, to be construed as a reference to the person who was, at 17 the time, the trustee of debenture holders. 18 7--General 19 Division of notices 20 Filing 38.(1) If a notice of a charge on property of a cooperative is required to 21 be filed under section 13, 17 or 36(2), 148 the notice may be filed by the 22 cooperative or by an interested person. 23 (2) If a document required by this part (other than section 36(1)) to be 24 filed with the registrar is filed by a person other than the cooperative 25 concerned, that person-- 26 (a) must, within 7 days after the filing of the document, give to the 27 148 Schedule 3, section 13 (Filing of notice of charge and copy of instrument), 17 (Acquisition of property subject to charge) or 36 (Assignment and variation of charges)

 


 

298 Cooperatives SCHEDULE 3 (continued) cooperative a copy of the document; and 1 (b) is entitled to recover from the cooperative the amount of any fees 2 properly paid by the person on the filing of the document. 3 offences 4 Filing 39.(1) If section 13, 17 or 36(2)149 is contravened in relation to a 5 registrable charge on property of a cooperative, the cooperative and an 6 officer of the cooperative who is knowingly concerned in or a party to the 7 contravention commits an offence. 8 Maximum penalty--10 penalty units. 9 (2) If a person who becomes the holder of a registrable charge fails to 10 comply with section 36(1), the person and, if the person is a corporation, an 11 officer of the corporation who is in default, each contravene this subsection. 12 to keep documents relating to charges 13 Cooperative 40. A cooperative must, at the place where the register mentioned in 14 section 41 is kept, keep a copy of-- 15 (a) every document relating to a charge on property of the 16 cooperative that is filed with the registrar under this part; and 17 (b) every document given to the cooperative under this part. 18 Maximum penalty--10 penalty units. 19 to keep register 20 Cooperative 41.(1) A cooperative must keep a register. 21 (2) On the creation of a charge (whether registrable or not) on property of 22 the cooperative, or on the acquisition of property subject to a charge 23 149 Schedule 3, section 13 (Filing of notice of charge and copy of instrument), 17 (Acquisition of property subject to charge) or 36 (Assignment and variation of charges)

 


 

299 Cooperatives SCHEDULE 3 (continued) (whether registrable or not), the cooperative must as soon as practicable 1 enter in the register particulars of the charge, giving in each case-- 2 (a) if the charge is a charge created by the cooperative, the date of its 3 creation or, if the charge was a charge existing on property 4 acquired by the cooperative, the date on which the property was 5 so acquired; and 6 (b) a short description of the liability (whether present or prospective) 7 secured by the charge; and 8 (c) a short description of the property charged; and 9 (d) the name of the trustee for debenture holders or, if there is no 10 trustee for debenture holders, the name of the chargee; and 11 (e) the name of the person whom the cooperative believes to be the 12 holder of the charge. 13 (3) A register kept by a cooperative under subsection (1) must be open 14 for inspection-- 15 (a) by a creditor or member of the cooperative, without charge; and 16 (b) by another person, on payment for each inspection of the amount, 17 not more than the amount prescribed under a regulation, the 18 cooperative requires or, if the cooperative does not require the 19 payment of an amount, without charge. 20 (4) A person may ask a cooperative to give the person a copy of the 21 register or part of the register. 22 (5) If a person makes a request under subsection (4), the cooperative 23 must send the copy to the person-- 24 (a) if the cooperative requires payment of an amount not more than 25 the amount prescribed under a regulation--within 21 days after 26 payment of the amount is received by the cooperative or within 27 the longer period the registrar approves; or 28 (b) if paragraph (a) does not apply--within 21 days after the request 29 is made or within a longer period that the registrar may approve. 30

 


 

300 Cooperatives SCHEDULE 3 (continued) (6) If default is made in complying with a provision of this section, the 1 cooperative commits an offence. 2 Maximum penalty--10 penalty units. 3 4 Certificates 42.(1) If particulars of a charge are entered in the register under this part, 5 the registrar must, on request by a person, issue to the person a certificate-- 6 (a) setting out the particulars; and 7 (b) stating the time and day when a notice of the charge containing 8 the particulars was filed with the registrar; and 9 (c) if the word `provisional' appears in the register next to the 10 reference to the time and day--stating that fact. 11 (2) A certificate issued under subsection (1) is evidence of the matters 12 stated in the certificate. 13 (3) If particulars of a charge are entered in the register under this part, and 14 the word `provisional' does not appear in the register next to the reference to 15 the time and day when a notice of the charge was filed, the registrar must, 16 on request by any person, issue to the person a certificate stating that 17 particulars of the charge are entered in the register under this part. 18 (4) A certificate issued under subsection (3) is evidence that the 19 requirements of this part as to registration (other than the requirements 20 relating to the period after the creation of the charge within which notice of 21 the charge is required to be filed) have been complied with. 22 of Supreme Court to rectify register 23 Power 43. If the Supreme Court is satisfied-- 24 (a) that a particular in relation to a registrable charge on property of a 25 cooperative has been omitted from, or misstated in, the register or 26 a memorandum mentioned in section 37;150 and 27 150 Schedule 3, section 37 (Satisfaction of, and release of property from, charges)

 


 

301 Cooperatives SCHEDULE 3 (continued) (b) that the omission or misstatement-- 1 (i) was accidental or due to inadvertence or to some other 2 sufficient cause; or 3 (ii) is not of a nature to prejudice the position of creditors or 4 shareholders; 5 or that on other grounds it is just and equitable to grant relief, the court may, 6 on the application of the cooperative or a person interested and on terms and 7 conditions that may seem to the court just and expedient, order that the 8 omission or misstatement be rectified. 9 may exempt from compliance with certain requirements of 10 Registrar part 11 44.(1) The registrar may, by gazette notice, exempt a person from 12 compliance with the requirements of section 13, 17 or 36151 relating to-- 13 (a) the particulars to be contained in a notice under the relevant 14 section; or 15 (b) the documents (other than the notice) to be filed under the relevant 16 section; or 17 (c) the verification of a document required to be filed under the 18 relevant section. 19 (2) A gazette notice under subsection (1) is subordinate legislation. 20 (3) A person who is exempted under this section from compliance with a 21 requirement of section 13, 17 or 36 subject to a condition must not 22 contravene the condition. 23 (4) If a person has contravened a condition to which an exemption under 24 this section is subject, the Supreme Court may, on the application of the 25 registrar, order the person to comply with the condition. 26 151 Schedule 3, section 13 (Filing of notice of charge and copy of instrument), 17 (Acquisition of property subject to charge) or 36 (Assignment and variation of charges)

 


 

302 Cooperatives SCHEDULE 3 (continued) ART 3--ORDER OF PRIORITY 1 P 1--General 2 Division 3 Definitions 45.(1) In this part-- 4 "priority time", in relation to a registered charge, means-- 5 (a) except as provided by paragraph (b) or (c)--the time and date 6 appearing in the register in relation to the charge, being a time and 7 day entered in the register under part 2, division 3;152 and 8 (b) if a notice has been filed under section 17153 in relation to a 9 charge on property, being a charge that, at the time when the 10 notice was filed, was already registered under part 2154--the 11 earlier or earliest time and day appearing in the register in relation 12 to the charge, being a time and day entered in the register under 13 section 17; and 14 (c) to the extent that the charge has effect as varied by a variation, 15 notice of which was required to be filed under 16 section 36(2)155 --the time and day entered in the register in 17 relation to the charge under section 24.156 18 "prior registered charge", in relation to another registered charge, means a 19 charge the priority time of which is earlier than the priority time of the 20 other charge. 21 "registered charge" means a charge that is registered under part 2. 22 "subsequent registered charge", in relation to another registered charge, 23 152 Schedule 3, part 2, division 3 (Registration) 153 Schedule 3, section 17 (Acquisition of property subject to charge) 154 Schedule 3, part 2 (Registration) 155 Schedule 3, section 36 (Assignment and variation of charges) 156 Schedule 3, section 24 (Registration of assignment or variation of charge)

 


 

303 Cooperatives SCHEDULE 3 (continued) means a charge the priority time of which is later than the priority time 1 of the other registered charge. 2 "unregistered charge" means a charge that is not registered under part 2, 3 but does not include a charge that is not a registrable charge. 4 (2) A reference in this part to a person having notice of a charge includes 5 a reference to a person having constructive notice of the charge. 6 (3) If, by virtue of the definition of "priority time" in subsection (1), a 7 registered charge has 2 or more priority times each of which relates to a 8 particular liability secured by the charge, each of the liabilities is, for this 9 part, to be taken to be secured by a separate registered charge, the priority 10 time of which is the priority time of the first-mentioned registered charge 11 that relates to the liability concerned. 12 of charges 13 Priorities 46.(1) Subject to this section, division 2157 has effect on the priorities, in 14 relation to each other, of registrable charges on the property of a 15 cooperative. 16 (2) The application, in relation to particular registrable charges, of the 17 order of priorities of charges set out in division 2, is subject to-- 18 (a) any consent (express or implied) that varies the priorities in 19 relation to each other of the charges, being a consent given by the 20 holder of 1 of the charges, being a charge that would otherwise be 21 entitled to priority over the other charge; and 22 (b) any agreement between the chargees that affects the priorities in 23 relation to each other of the charges in relation to which those 24 persons are the chargees. 25 (3) The holder of a registered charge, being a floating charge, on property 26 of a cooperative is taken, for subsection (2), to have consented to the charge 27 being postponed to a subsequent registered charge, being a fixed charge that 28 is created before the floating charge becomes fixed, on any of the property 29 unless-- 30 157 Schedule 3, division 2 (Priority rules)

 


 

304 Cooperatives SCHEDULE 3 (continued) (a) the creation of the subsequent registered charge contravened a 1 provision of the instrument or resolution creating or evidencing 2 the floating charge; and 3 (b) a notice of the floating charge indicating the existence of the 4 provision mentioned in paragraph (a) was filed with the registrar 5 under section 13, 17 or 36158 before the creation of the 6 subsequent registered charge. 7 (4) If a charge relates to property of a kind to which a particular 8 paragraph of section 4(2)159 applies and also relates to other property, 9 division 2 applies so as to affect the priority of the charge only in so far as it 10 relates to the first-mentioned property and do not affect the priority of the 11 charge in so far as it relates to the other property. 12 2--Priority rules 13 Division priority rules in relation to registered charges 14 General 47.(1) A registered charge on property of a cooperative has priority 15 over-- 16 (a) a subsequent registered charge on the property, unless the 17 subsequent registered charge was created before the creation of 18 the prior registered charge and the chargee in relation to the 19 subsequent registered charge proves that the chargee in relation to 20 the prior registered charge had notice of the subsequent registered 21 charge at the time when the prior registered charge was created; 22 and 23 (b) an unregistered charge on the property created before the creation 24 of the registered charge, unless the chargee in relation to the 25 unregistered charge proves that the chargee in relation to the 26 158 Schedule 3, section 13 (Filing of notice of charge and copy of instrument), 17 Acquisition of property subject to charge) or 36 (Assignment and variation of charges) 159 Schedule 3, section 4 (To which charges does schedule apply)

 


 

305 Cooperatives SCHEDULE 3 (continued) registered charge had notice of the unregistered charge at the time 1 when the registered charge was created; and 2 (c) an unregistered charge on the property created after the creation of 3 the registered charge. 4 (2) A registered charge on property of a cooperative is postponed to-- 5 (a) a subsequent registered charge on the property, if the subsequent 6 registered charge was created before the creation of the prior 7 registered charge and the chargee in relation to the subsequent 8 registered charge proves that the chargee in relation to the prior 9 registered charge had notice of the subsequent registered charge at 10 the time when the prior registered charge was created; and 11 (b) an unregistered charge on the property created before the creation 12 of the registered charge, if the chargee in relation to the 13 unregistered charge proves that the chargee in relation to the 14 registered charge had notice of the unregistered charge at the time 15 when the registered charge was created. 16 priority rule in relation to unregistered charges 17 General 48. An unregistered charge on property of a cooperative has priority 18 over-- 19 (a) a registered charge on the property that was created after the 20 creation of the unregistered charge and does not have priority over 21 the unregistered charge under section 47(1); and 22 (b) another unregistered charge on the property created after the 23 first-mentioned unregistered charge. 24 priority rules 25 Special 49.(1) Except as provided by this section, priority given by this part to a 26 charge over another charge does not extend to a liability that, at the priority 27 time in relation to the first-mentioned charge, is not a present liability. 28 (2) If a registered charge on property of a cooperative secures-- 29

 


 

306 Cooperatives SCHEDULE 3 (continued) (a) a present liability and a prospective liability of an unspecified 1 amount; or 2 (b) a prospective liability of an unspecified amount; 3 priority given by this part to the charge over another charge of which the 4 chargee in relation to the first-mentioned charge does not have actual 5 knowledge extends to the prospective liability, whether the prospective 6 liability became a present liability before or after the registration of the 7 first-mentioned charge. 8 (3) If a registered charge on property of a cooperative secures-- 9 (a) a present liability and a prospective liability up to a specified 10 maximum amount; or 11 (b) a prospective liability up to a specified maximum amount; 12 and the notice filed under section 13 or 17160 in relation to the charge sets 13 out the nature of the prospective liability and the amount so specified, then 14 priority given by this part to the charge over another charge extends to 15 prospective liability secured by the first-mentioned charge to the extent of 16 the maximum amount so specified. 17 (4) Subsection (3) applies whether the prospective liability became a 18 present liability before or after the registration of the first-mentioned charge 19 and despite the fact that the chargee in relation to the first-mentioned charge 20 had actual knowledge of the other charge at the time when the prospective 21 liability became a present liability. 22 (5) Subsection (6) applies if-- 23 (a) a registered charge on property of a cooperative secures-- 24 (i) a present liability and a prospective liability up to a specified 25 maximum amount; or 26 (ii) a prospective liability up to a specified maximum amount; 27 but the notice filed under section 13 or 17 in relation to the charge 28 does not set out the nature of the prospective liability or the 29 160 Schedule 3, section 13 (Filing of notice of charge and copy of instrument) or 17 Acquisition of property subject to charge)

 


 

307 Cooperatives SCHEDULE 3 (continued) maximum amount so specified; or 1 (b) a registered charge on property of a cooperative secures a 2 prospective liability of an unspecified amount. 3 (6) In relation to a charge mentioned in subsection (5)-- 4 (a) priority given by this part to the charge over another charge of 5 which the chargee in relation to the first-mentioned charge has 6 actual knowledge extends to prospective liability secured by the 7 first-mentioned charge that had become a present liability at the 8 time when the chargee in relation to the first-mentioned charge 9 first obtained actual knowledge of the other charge; and 10 (b) priority given by this part to the charge over another charge of 11 which the chargee in relation to the first-mentioned charge has 12 actual knowledge extends to prospective liability secured by the 13 first-mentioned charge that became a present liability, as the result 14 of the making of an advance, after the time when the chargee in 15 relation to the first-mentioned charge first obtained actual 16 knowledge of the other charge if, at the time, the terms of the 17 first-mentioned charge required the chargee in relation to the 18 charge to make the advance after the time. 19 (7) Subsection (6)(b) extends to the prospective liability whether the 20 advance was made before or after the registration of the first-mentioned 21 charge and despite the fact that the chargee in relation to the first-mentioned 22 charge had actual knowledge of the other charge at the time when the 23 advance was made. 24 25

 


 

308 Cooperatives CHEDULE 4 1 S RECEIVERS, AND OTHER CONTROLLERS, OF 2 PROPERTY OF COOPERATIVES 3 section 263 4 5 Interpretation 1. In this schedule-- 6 "administrator", in relation to a deed of arrangement, means an 7 administrator of the deed appointed under the Corporations Law, 8 part 5.3A, as adopted and applying under this Act. 9 "control day", in relation to a controller of property of a cooperative, 10 means-- 11 (a) unless paragraph (b) applies-- 12 (i) for a receiver, or receiver and manager, of the property--the 13 day when the receiver, or receiver and manager, was 14 appointed; or 15 (ii) for another person who is in possession, or has control, of 16 the property for the purpose of enforcing a charge--the day 17 when the person entered into possession, or took control, of 18 property of the cooperative for the purpose of enforcing the 19 charge; or 20 (b) if the controller became a controller of property of the 21 cooperative-- 22 (i) to act with an existing controller of the property; or 23 (ii) in place of a controller of the property who has died or 24 ceased to be a controller of the property; 25 the day that is, because of another application or applications of 26 this definition, the control day in relation to the controller 27 mentioned in subparagraph (i) or (ii). 28

 


 

309 Cooperatives SCHEDULE 4 (continued) "controller", of property of a cooperative, means-- 1 (a) a receiver, or receiver and manager, of the property; or 2 (b) anyone else who (whether or not as agent for the cooperative) is 3 in possession, or has control, of the property for the purpose of 4 enforcing a charge. 5 "cooperative" includes a foreign cooperative registered under part 14.161 6 "daily newspaper" means a newspaper that is ordinarily published on each 7 day that is a business day in the place where the newspaper is 8 published, whether or not the newspaper is ordinarily published on 9 other days. 10 "managing controller", of property of a cooperative, means-- 11 (a) a receiver and manager of the property; or 12 (b) another controller of the property who has functions or powers in 13 relation to managing the cooperative. 14 "national newspaper" means a daily newspaper circulating generally in 15 each State. 16 "officer", of a cooperative that is a foreign cooperative, includes a local 17 agent of the foreign cooperative. 18 "property", of a cooperative, means property-- 19 (a) for a cooperative that is not a foreign cooperative--within or 20 outside Australia; or 21 (b) for a cooperative that is a foreign cooperative--within Australia 22 or an external Territory. 23 "receiver", of property of a cooperative, includes a receiver and manager. 24 of schedule 25 Application 2. Except in so far as the contrary intention appears, this schedule applies 26 in relation to a receiver of property of a cooperative who is appointed after 27 161 Part 14 (Foreign cooperatives)

 


 

310 Cooperatives SCHEDULE 4 (continued) the commencement, even if the appointment arose out of a transaction 1 entered into, or an act or thing done, before the commencement. 2 not to act as receivers 3 Persons 3.(1) A person is not qualified to be appointed, and must not act, as 4 receiver of property of a cooperative if the person-- 5 (a) is a mortgagee of property of the cooperative; or 6 (b) is an auditor or an officer of the cooperative; or 7 (c) is an officer of a corporation that is a mortgagee of property of the 8 cooperative; or 9 (d) is not a registered liquidator under the Corporations Law; or 10 (e) is an officer of a corporation related to the cooperative; or 11 (f) has at any time within the last 12 months been an officer or 12 promoter of the cooperative or of a related corporation, unless the 13 registrar directs in writing that this paragraph does not apply in 14 relation to the person in relation to the cooperative. 15 (2) In subsection (1)-- 16 "officer", of a corporation, does not include a receiver, appointed under an 17 instrument whether before or after the commencement, of property of 18 the body. 19 (3) Subsection (1)(d) does not apply in relation to a corporation 20 authorised under a law of the Commonwealth or of a State to act as receiver 21 of property of the cooperative. 22 (4) Nothing in this section prevents a person from acting as receiver of 23 property of a cooperative under an appointment validly made before the 24 commencement. 25 Court may declare whether controller is validly acting 26 Supreme 4.(1) If there is doubt, on a specific ground, about-- 27 (a) whether a purported appointment of a person, after the 28

 


 

311 Cooperatives SCHEDULE 4 (continued) commencement, as receiver of property of a cooperative is valid; 1 or 2 (b) whether a person who has entered into possession, or assumed 3 control, of property of a cooperative after the commencement did 4 so validly under the terms of a charge on the property; 5 the person, the cooperative or any of the cooperative's creditors may apply 6 to the Supreme Court for an order under subsection (2). 7 (2) On an application, the Supreme Court may make an order declaring 8 whether or not-- 9 (a) the purported appointment was valid; or 10 (b) the person entered into possession, or assumed control, validly 11 under the terms of the charge; 12 as the case may be, on the ground specified in the application or on some 13 other ground. 14 of controller 15 Liability 5.(1) A receiver, or another authorised person, who, whether as agent for 16 the cooperative or not, enters into possession or assumes control of a 17 property of a cooperative for the purpose of enforcing any charge is, despite 18 an agreement to the contrary, but without prejudice to the person's rights 19 against the cooperative or another person, liable for debts incurred by the 20 person in the course of the receivership, possession or control for services 21 rendered, goods purchased or property hired, leased, used or occupied. 22 (2) Subsection (1) does not constitute the person entitled to the charge a 23 mortgagee in possession. 24 (3) If-- 25 (a) a person (the "controller") enters into possession or assumes 26 control of property of a cooperative; and 27 (b) the controller purports to have been properly appointed as a 28 receiver of the property under a power contained in an instrument, 29 but has not been properly so appointed; and 30

 


 

312 Cooperatives SCHEDULE 4 (continued) (c) civil proceedings in a federal court or a court of a State arise out 1 of an act alleged to have been done by the controller; 2 the court may, if it is satisfied that the controller believed on reasonable 3 grounds that the controller had been properly so appointed, order that-- 4 (d) the controller be relieved in whole or in part of a liability that the 5 controller has incurred but would not have incurred if the 6 controller had been properly so appointed; and 7 (e) a person who purported to appoint the controller as receiver be 8 liable for an act, matter or thing in so far as the controller has been 9 relieved under paragraph (d) of liability for that act, matter or 10 thing. 11 of controller under pre-existing agreement about property 12 Liability used by cooperative 13 6.(1) This section applies if-- 14 (a) under an agreement made before the control day in relation to a 15 controller of property of a cooperative, the cooperative continues 16 after the control day to use or occupy, or to be in possession of, 17 property ("third party property") of which someone else is the 18 owner or lessor; and 19 (b) the controller is controller of the third party property. 20 (2) Subject to subsections (4) and (7), the controller is liable for so much 21 of the rent or other amounts payable by the cooperative under the agreement 22 as is attributable to a period-- 23 (a) that begins more than 7 days after the control day; and 24 (b) throughout which-- 25 (i) the cooperative continues to use or occupy, or to be in 26 possession of, the third party property; and 27 (ii) the controller is controller of the third party property. 28 (3) Within 7 days after the control day, the controller may give to the 29 owner or lessor a notice that specifies the third party property and states that 30

 


 

313 Cooperatives SCHEDULE 4 (continued) the controller does not propose to exercise rights in relation to the property 1 as controller of the property, whether on behalf of the cooperative or anyone 2 else. 3 (4) Despite subsection (2), the controller is not liable for so much of the 4 rent or other amounts payable by the cooperative under the agreement as is 5 attributable to a period during which a notice under subsection (3) is in 6 force, but the notice does not affect a liability of the cooperative. 7 (5) A notice under subsection (3) ceases to have effect if-- 8 (a) the controller revokes it by writing given to the owner or lessor; 9 or 10 (b) the controller exercises, or purports to exercise, a right in relation 11 to the third party property as controller of the property, whether 12 on behalf of the cooperative or anyone else. 13 (6) For subsection (5), the controller does not exercise, or purport to 14 exercise, a right mentioned in subsection (5)(b) merely because the 15 controller continues to be in possession, or to have control, of the third party 16 property, unless the controller-- 17 (a) also uses the property; or 18 (b) asserts a right, as against the owner or lessor, so to continue. 19 (7) Subsection (2) does not apply in so far as the Supreme Court, by 20 order, excuses the controller from liability, but an order does not affect a 21 liability of the cooperative. 22 (8) The controller is not taken because of subsection (2)-- 23 (a) to have adopted the agreement; or 24 (b) to be liable under the agreement otherwise than as mentioned in 25 subsection (2). 26 of receiver 27 Powers 7.(1) Subject to this section, a receiver of property of a cooperative has 28 power to do, in Australia and elsewhere, all things necessary or convenient 29 to be done for or in relation to, or as incidental to, the attainment of the 30

 


 

314 Cooperatives SCHEDULE 4 (continued) objectives for which the receiver was appointed. 1 (2) Without limiting subsection (1), but subject to any provision of the 2 court order by which, or the instrument under which, the receiver was 3 appointed, being a provision that limits the receiver's powers in any way, a 4 receiver of property of a cooperative has, in addition to any powers 5 conferred by the order or instrument, as the case may be, or by another law, 6 power, for the purpose of attaining the objectives for which the receiver was 7 appointed-- 8 (a) to enter into possession and take control of property of the 9 cooperative under the terms of the order or instrument; and 10 (b) to lease, let on hire or dispose of property of the cooperative; and 11 (c) to grant options over property of the cooperative on conditions 12 that the receiver considers appropriate; and 13 (d) to borrow money on the security of property of the cooperative; 14 and 15 (e) to insure property of the cooperative; and 16 (f) to repair, renew or enlarge property of the cooperative; and 17 (g) to convert property of the cooperative into money; and 18 (h) to carry on a business of the cooperative; and 19 (i) to take on lease or on hire, or to acquire, property necessary or 20 convenient in connection with the carrying on of a business of the 21 cooperative; and 22 (j) to execute a document, bring or defend a proceeding or do any 23 other act or thing in the name of and on behalf of the cooperative; 24 and 25 (k) to draw, accept, make and endorse a bill of exchange or 26 promissory note; and 27 (l) to use a seal of the cooperative; and 28 (m) to engage or discharge employees on behalf of the cooperative; 29 and 30 (n) to appoint a solicitor, accountant or other professionally qualified 31

 


 

315 Cooperatives SCHEDULE 4 (continued) person to assist the receiver; and 1 (o) to appoint an agent to do any business that the receiver is unable 2 to do, or that it is unreasonable to expect the receiver to do, in 3 person; and 4 (p) if a debt or liability is owed to the cooperative--to prove the debt 5 or liability in a bankruptcy, insolvency or winding-up and, in that 6 connection, to receive dividends and to assent to a proposal for a 7 composition or a scheme of arrangement; and 8 (q) if the receiver was appointed under an instrument that created a 9 charge on uncalled capital or uncalled premiums of the 10 cooperative-- 11 (i) in the name of the cooperative, to make a call for money 12 unpaid on shares in the cooperative (whether on account of 13 the nominal value of the shares or by way of premium); or 14 (ii) on the giving of an adequate indemnity to a liquidator of the 15 cooperative, in the name of the liquidator, to make a call for 16 money unpaid on account of the nominal value of shares in 17 the cooperative; and 18 (r) to enforce payment of a call that is due and unpaid, whether the 19 calls were made by the receiver or otherwise; and 20 (s) to make or defend an application for the winding-up of the 21 cooperative; and 22 (t) to refer to arbitration a question affecting the cooperative. 23 (3) The conferring by this section on a receiver of powers in relation to 24 property of a cooperative does not, in relation to the property, affect a right 25 of another person other than the cooperative. 26 (4) In this section, a reference, in relation to a receiver, to property of a 27 cooperative is, unless the contrary intention appears, a reference to the 28 property of the cooperative in relation to which the receiver was appointed. 29

 


 

316 Cooperatives SCHEDULE 4 (continued) duty of care in exercising power of sale 1 Controller's 8.(1) In exercising a power of sale in relation to property of a 2 cooperative, a controller must take all reasonable care to sell the property 3 for-- 4 (a) if, when it is sold, it has a market value--not less than the market 5 value; or 6 (b) otherwise--the best price that is reasonably obtainable, having 7 regard to the circumstances existing when the property is sold. 8 (2) Nothing in subsection (1) limits anything in part 9, division 2.162 9 Court may authorise managing controller to dispose of 10 Supreme property despite prior charge 11 9.(1) On the application of a managing controller of property of a 12 cooperative, the Supreme Court may by order authorise the controller to 13 sell, or to dispose of in some other specified way, specified property of the 14 cooperative, even though it is subject to a charge (the "prior charge") that 15 has priority over a charge (the "controller's charge") on the property that 16 the controller is enforcing. 17 (2) The Supreme Court may make an order if satisfied that-- 18 (a) apart from the existence of the prior charge, the controller would 19 have power to sell, or to dispose of, the property; and 20 (b) the controller has taken all reasonable steps to obtain the consent 21 of the holder of the prior charge to the sale or disposal, but has 22 not obtained the consent; and 23 (c) sale or disposal of the property under the order is in the best 24 interests of the cooperative's creditors and of the cooperative; and 25 (d) sale or disposal of the property under the order will not 26 unreasonably prejudice the rights or interests of the holder of the 27 prior charge. 28 162 Part 9, division 2 (Duties and liabilities of directors, officers and employees)

 


 

317 Cooperatives SCHEDULE 4 (continued) (3) The Supreme Court may have regard to the need to protect adequately 1 the rights and interests of the holder of the prior charge. 2 (4) If the property would be sold or disposed of together with other 3 property that is subject to the controller's charge, the Supreme Court may 4 have regard to-- 5 (a) the amount, if any, by which it is reasonable to expect that the net 6 proceeds of selling or disposing of the other property otherwise 7 than together with the first-mentioned property would be less than 8 so much of the net proceeds of selling or disposing of all the 9 property together as would be attributable to the other property; 10 and 11 (b) the amount, if any, by which it is reasonable to expect that the net 12 proceeds of selling or disposing of the first-mentioned property 13 otherwise than together with the other property would be greater 14 than so much of the net proceeds of selling or disposing of all the 15 property together as would be attributable to the first-mentioned 16 property. 17 (5) Nothing in subsection (3) or (4) limits the matters to which the 18 Supreme Court may have regard for subsection (2). 19 (6) An order may be made subject to conditions, for example (but 20 without limitation)-- 21 (a) a condition that-- 22 (i) the net proceeds of the sale or disposal; and 23 (ii) the net proceeds of the sale or disposal of other property, if 24 any, that may be specified in the condition and is subject to 25 the controller's charge; 26 or a specified part of the net proceeds, be applied in payment of 27 specified amounts secured by the prior charge; or 28 (b) a condition that the controller apply a specified amount in 29 payment of specified amounts secured by the prior charge. 30

 


 

318 Cooperatives SCHEDULE 4 (continued) power to carry on cooperative's business during 1 Receiver's winding-up 2 10.(1) A receiver of property of a cooperative that is being wound-up 3 may-- 4 (a) with the written approval of the cooperative's liquidator or with 5 the approval of the Supreme Court, carry on the cooperative's 6 business either generally or as otherwise specified in the approval; 7 and 8 (b) do whatever is necessarily incidental to carrying on the business 9 under paragraph (a). 10 (2) Subsection (1) does not-- 11 (a) affect a power that the receiver has otherwise than under 12 subsection (1); or 13 (b) empower the receiver to do an act that the receiver would not have 14 power to do if the cooperative were not being wound-up. 15 (3) A receiver of property of a cooperative who carries on the 16 cooperative's business under subsection (1) does so-- 17 (a) as agent for the cooperative; and 18 (b) in his or her capacity as receiver of property of the cooperative. 19 (4) The consequences of subsection (3) include, but are not limited to, the 20 following-- 21 (a) for section 5(1)--a debt that the receiver incurs in carrying on the 22 business as mentioned in subsection (3) is incurred in the course 23 of the receivership; 24 (b) a debt or liability that the receiver incurs in so carrying on the 25 business is not a cost, charge or expense of the winding-up. 26 duties in relation to financial institution accounts and 27 Controller's accounting records 28 11.(1) A controller of property of a cooperative must-- 29

 


 

319 Cooperatives SCHEDULE 4 (continued) (a) open and maintain an account with a financial institution, 1 bearing-- 2 (i) the controller's own name; and 3 (ii) for a receiver of the property--the title `receiver'; and 4 (iii) otherwise--the title `controller'; and 5 (iv) the cooperative's name; and 6 (b) within 3 business days after money of the cooperative comes 7 under the control of the controller, pay the money into an account 8 maintained under subsection (1); and 9 (c) ensure that no account that the controller maintains under 10 subsection (1) contains money other than money of the 11 cooperative that comes under the control of the controller; and 12 (d) keep the accounting records that correctly record and explain all 13 transactions the controller enters into as the controller. 14 (2) A director, creditor or member of a cooperative may, unless the 15 Supreme Court otherwise orders, personally or by an agent, inspect records 16 kept by a controller of property of the cooperative for subsection (1)(d). 17 controller to report within 2 months about cooperative's 18 Managing affairs 19 12.(1) A managing controller of property of a cooperative must prepare a 20 report about the cooperative's affairs in the approved form and made up to a 21 day not later than 28 days before the day when it is prepared. 22 (2) The managing controller must prepare the report and file it with the 23 registrar within 2 months after the control day. 24 (3) As soon as practicable, and in any event within 14 days, after filing 25 the report with the registrar, the managing controller must cause to be 26 published in a national newspaper, or in each State in a daily newspaper that 27 circulates generally in that State, a notice stating-- 28 (a) that the report has been prepared; and 29 (b) that a person can, on paying the fee prescribed under a regulation, 30

 


 

320 Cooperatives SCHEDULE 4 (continued) inspect the report at specified offices of the registrar. 1 (4) If, in the managing controller's opinion, it would seriously 2 prejudice-- 3 (a) the cooperative's interests; or 4 (b) the achievement of the objectives for which the controller was 5 appointed, or entered into possession or assumed control of 6 property of the cooperative, as the case requires; 7 if particular information that the controller would otherwise include in the 8 report were made available to the public, the controller need not include the 9 information in the report. 10 (5) If the managing controller omits information from the report as 11 permitted by subsection (4), the controller must include instead a notice-- 12 (a) stating that certain information has been omitted from the report; 13 and 14 (b) summarising what the information is about, but without 15 disclosing the information itself. 16 by receiver 17 Reports 13.(1) If it appears to the receiver of property of a cooperative that-- 18 (a) a past or present officer, or a member, of the cooperative may 19 have been guilty of an offence under a law of the Commonwealth 20 or of a State in relation to the cooperative; or 21 (b) a person who has taken part in the formation, promotion, 22 administration, management or winding-up of the cooperative-- 23 (i) may have misapplied or retained, or may have become liable 24 or accountable for, money or property (whether the property 25 is within or outside Australia) of the cooperative; or 26 (ii) may have been guilty of negligence, default, breach of duty 27 or breach of trust in relation to the cooperative; 28 the receiver must-- 29

 


 

321 Cooperatives SCHEDULE 4 (continued) (c) file with the registrar as soon as practicable a report about the 1 matter; and 2 (d) give to the registrar the information, and the access to and 3 facilities for inspecting and taking copies of any documents, the 4 registrar requires. 5 (2) The receiver may also file further reports specifying any other matter 6 that, in the receiver's opinion, it is desirable to bring to the notice of the 7 registrar. 8 (3) If it appears to the Supreme Court-- 9 (a) that a past or present officer, or a member, of a cooperative in 10 relation to property of which a receiver has been appointed has 11 been guilty of an offence under a law mentioned in 12 subsection (1)(a) in relation to the cooperative; or 13 (b) that a person who has taken part in the formation, promotion, 14 administration, management or winding-up of a cooperative in 15 relation to property of which a receiver has been appointed has 16 engaged in conduct mentioned in subsection (1)(b) in relation to 17 the cooperative; 18 and that the receiver has not filed a report with the registrar about the matter, 19 the court may, on the application of a person interested in the appointment 20 of the receiver or of its initiative, direct the receiver to file the report. 21 of controller 22 Supervision 14.(1) If-- 23 (a) it appears to the Supreme Court or to the registrar that a controller 24 of property of a cooperative has not faithfully performed, or is not 25 faithfully performing, the controller's functions or has not 26 observed, or is not observing, a requirement of-- 27 (i) for a receiver--the order by which, or the instrument under 28 which, the receiver was appointed; or 29 (ii) otherwise--an instrument under which the controller entered 30 into possession, or took control, of the property; or 31

 


 

322 Cooperatives SCHEDULE 4 (continued) (iii) in any case--the Supreme Court; or 1 (iv) in any case--this Act or rules of court; or 2 (b) a person complains to the Supreme Court or to the registrar about 3 an act or omission of a controller of property of a cooperative in 4 connection with performing or exercising any of the controller's 5 functions and powers-- 6 the Supreme Court or the registrar, as the case may be, may inquire into the 7 matter and, if the Supreme Court or registrar so inquires, the Supreme 8 Court may take the action as it thinks appropriate. 9 (2) The registrar may report to the Supreme Court any matter that in the 10 registrar's opinion is a misfeasance, neglect or omission on the part of a 11 controller of property of a cooperative and the Court may-- 12 (a) order the controller to make good any loss the estate of the 13 cooperative has sustained because of the misfeasance, neglect or 14 omission; and 15 (b) make another order or orders that it thinks appropriate. 16 (3) The Supreme Court may at any time-- 17 (a) require a controller of property of a cooperative to answer 18 questions about the performance or exercise of any of the 19 controller's functions and powers as controller; or 20 (b) examine a person about the performance or exercise by the 21 controller of any of the controller's functions and powers as 22 controller; or 23 (c) direct an investigation to be made of the controller's records. 24 may apply to Supreme Court 25 Controller 15.(1) A controller of property of a cooperative may apply to the 26 Supreme Court for directions in relation to any matter arising in connection 27 with the performance or exercise of any of the controller's functions and 28 powers as controller. 29 (2) For a receiver of property of a cooperative, subsection (1) applies 30

 


 

323 Cooperatives SCHEDULE 4 (continued) only if the receiver was appointed under a power contained in an 1 instrument. 2 of Supreme Court to fix receiver's remuneration 3 Power 16.(1) The Supreme Court may by order fix the amount to be paid by 4 way of remuneration to a person who, under a power contained in an 5 instrument, has been appointed as receiver of property of a cooperative. 6 (2) The power of the Supreme Court to make an order under this 7 section-- 8 (a) extends to fixing the remuneration for a period before the making 9 of the order or the application for the order; and 10 (b) is exercisable even if the receiver has died, or ceased to act, before 11 the making of the order or the application for the order; and 12 (c) if the receiver has been paid or has retained for the receiver's 13 remuneration for a period before the making of the order an 14 amount in excess of that fixed for the period--extends to 15 requiring the receiver or the receiver's personal representatives to 16 account for the excess or the part of the excess that is specified in 17 the order. 18 (3) The power conferred by subsection (2)(c) must not be exercised in 19 relation to a period before the making of the application for the order unless, 20 in the opinion of the Supreme Court, there are special circumstances 21 making it proper for the power to be so exercised. 22 (4) The Supreme Court may from time to time vary or amend an order 23 under this section. 24 (5) An order under this section may be made, varied or amended on the 25 application of-- 26 (a) a liquidator of the cooperative; or 27 (b) an administrator of the cooperative; or 28 (c) an administrator of a deed of arrangement executed by the 29 cooperative; or 30

 


 

324 Cooperatives SCHEDULE 4 (continued) (d) the registrar. 1 (6) An order under this section may be varied or amended on the 2 application of the receiver. 3 (7) An order under this section may be made, varied or amended only as 4 provided in subsections (5) and (6). 5 has qualified privilege in certain cases 6 Controller 17. A controller of property of a cooperative has qualified privilege in 7 relation to-- 8 (a) a matter contained in a report that the controller files under 9 section 12 or 13;163 or 10 (b) a comment that the controller makes under section 20(2)(c).164 11 of matters relating to controller 12 Notification 18.(1) A person who obtains an order for the appointment of a receiver 13 of property of a cooperative, or who appoints a receiver of property of a 14 cooperative under a power contained in an instrument, must-- 15 (a) within 7 days after obtaining the order or making the 16 appointment, file notice that the order has been obtained, or that 17 the appointment has been made, as the case requires; and 18 (b) within 21 days after obtaining the order or making the 19 appointment, cause notice that the order has been obtained, or that 20 the appointment has been made, as the case requires, to be 21 published in the gazette. 22 (2) A person who appoints another person to enter into possession, or 23 take control, of property of a cooperative (whether or not as agent for the 24 cooperative) for the purpose of enforcing a charge otherwise than as 25 163 Schedule 4, section 12 (Managing controller to report within 2 months about cooperative's affairs or 13 (Reports by receiver) 164 Schedule 4, section 20 (Officers to report to controller about cooperative's affairs)

 


 

325 Cooperatives SCHEDULE 4 (continued) receiver of the property must-- 1 (a) within 7 days after making the appointment, file notice of the 2 appointment with the registrar; and 3 (b) within 21 days after making the appointment, cause notice of the 4 appointment to be published in the gazette. 5 (3) A person who enters into possession, or takes control, as mentioned 6 in subsection (2) must-- 7 (a) within 7 days after entering into possession or taking control, file 8 notice with the registrar that the person has done so; and 9 (b) within 21 days after entering into possession or taking control, 10 cause to be published in the gazette, notice that the person has 11 done so; 12 unless another person-- 13 (c) appointed the first-mentioned person to enter into possession or 14 take control; and 15 (d) complies with subsection (2) in relation to the appointment. 16 (4) Within 14 days after becoming a controller of property of a 17 cooperative, a person must file with the registrar notice in the approved 18 form of the address of the person's office. 19 (5) A controller of property of a cooperative must, within 14 days after a 20 change in the situation of the controller's office, file with the registrar notice 21 in the approved form of the change. 22 (6) A person who ceases to be a controller of property of a cooperative 23 must-- 24 (a) within 7 days after so ceasing, file with the registrar notice that the 25 person has so ceased; and 26 (b) within 21 days after so ceasing, cause notice that the person has 27 so ceased to be published in the gazette. 28

 


 

326 Cooperatives SCHEDULE 4 (continued) that receiver appointed or other controller acting 1 Statement 19.(1) If a receiver of property (whether within or outside this State or 2 within or outside Australia) of a cooperative has been appointed, the 3 cooperative must set out, in every public document, and in every eligible 4 negotiable instrument, of the cooperative, after the name of the cooperative 5 where it first appears, a statement that a receiver, or a receiver and manager, 6 as the case requires, has been appointed. 7 (2) If there is a controller (other than a receiver) of property (whether 8 within Australia or elsewhere) of a cooperative, the cooperative must set 9 out, in every public document, and in every eligible negotiable instrument, 10 of the cooperative, after the cooperative's name where it first appears, a 11 statement that a controller is acting. 12 to report to controller about cooperative's affairs 13 Officers 20.(1) In this section-- 14 "reporting officer", in relation to a cooperative for property of which a 15 person is controller, means a person who was on the control day-- 16 (a) for a cooperative other than a foreign cooperative--a director or 17 secretary of the cooperative; or 18 (b) for a foreign cooperative--a local agent of the foreign 19 cooperative. 20 (2) If a person becomes a controller of property of a cooperative-- 21 (a) the person must serve on the cooperative as soon as practicable 22 notice that the person is a controller of property of the 23 cooperative; and 24 (b) within 14 days after the cooperative receives the notice, the 25 reporting officers must make out and submit to the person a 26 report in the approved form about the affairs of the cooperative as 27 at the control day; and 28 (c) the person must, within 28 days after receipt of the report-- 29 (i) file with the registrar a copy of the report and a notice setting 30 out the comments the person considers appropriate to make 31

 


 

327 Cooperatives SCHEDULE 4 (continued) relating to the report or, if the person does not consider it 1 appropriate to comment, a notice stating that the receiver 2 does not consider it appropriate to comment; and 3 (ii) send to the cooperative a copy of the notice filed under 4 subparagraph (i); and 5 (d) the person must, within 28 days after receipt of the report, if the 6 person became a controller of the property-- 7 (i) because of an appointment as receiver of the property that 8 was made by or on behalf of the holder of debentures of the 9 cooperative; or 10 (ii) by entering into possession, or taking control, of the 11 property for the purpose of enforcing a charge securing the 12 debentures; 13 and there are trustees for the holders of the debentures, send to the 14 trustees a copy of the report and a copy of the notice filed under 15 paragraph (c)(i). 16 (3) If notice has been served on a cooperative under subsection (2)(a), the 17 reporting officers may apply to the controller or to the Supreme Court to 18 extend the period within which the report is to be submitted and-- 19 (a) if application is made to the controller--if the controller believes 20 that there are special reasons for so doing, the controller may, by 21 written notice given to the reporting officers, extend the period 22 until a specified day; and 23 (b) if application is made to the Supreme Court--if the court believes 24 that there are special reasons for so doing, the court may, by 25 order, extend the period until a specified day. 26 (4) As soon as practicable after granting an extension under 27 subsection (3)(a), the controller must file a copy of the notice with the 28 registrar. 29 (5) As soon as practicable after the Supreme Court grants an extension 30 under subsection (3)(b), the reporting officers must file a copy of the order 31 with the registrar. 32

 


 

328 Cooperatives SCHEDULE 4 (continued) (6) Subsections (2), (3) and (4) do not apply in a case where a person 1 becomes a controller of property of a cooperative-- 2 (a) to act with an existing controller of property of the cooperative; or 3 (b) in place of a controller of the property who has died or ceased to 4 be a controller of the property. 5 (7) However, if subsection (2) applies in a case where a controller of 6 property of a cooperative dies, or ceases to be a controller of property of the 7 cooperative, before subsection (2) is fully complied with, then-- 8 (a) the references in subsections (2)(b), (c) and (d) to the person; and 9 (b) the references in subsections (3) and (4) to the controller; 10 include references to the controller's successor and to a continuing 11 controller. 12 (8) If a cooperative is being wound-up, this section (including 13 subsection (7)) and section 21 apply even if the controller and the liquidator 14 are the same person, but with the necessary changes arising from that fact. 15 may require reports 16 Controller 21.(1) A controller of property of a cooperative may, by notice given to 17 the person or persons, require 1 or more persons included in 1 or more of 18 the following classes of persons to make out as required by the notice, 19 verify by a written statement in the approved form, and submit to the 20 controller, a report, containing the information that is specified in the notice 21 as to the affairs of the cooperative or as to the affairs specified in the notice, 22 as at a date specified in the notice-- 23 (a) persons who are or have been officers of the cooperative; 24 (b) if the cooperative was incorporated within 1 year before the 25 control day--persons who have taken part in the formation of the 26 cooperative; 27 (c) persons who are employed by the cooperative or have been so 28 employed within 1 year before the control day and are, in the 29 opinion of the controller, capable of giving the information 30 required; 31

 


 

329 Cooperatives SCHEDULE 4 (continued) (d) persons who are, or have been within 1 year before the control 1 day, officers of, or employed by, a cooperative that is, or within 2 the year was, an officer of the cooperative. 3 (2) Without limiting subsection (1), a notice under subsection (1) may 4 specify the information that the controller requires as to affairs of the 5 cooperative by reference to information that this Act requires to be included 6 in another report, statement or notice under this Act. 7 (3) A person making a report and verifying it as required by 8 subsection (1) must, subject to a regulation, be allowed, and must be paid 9 by the receiver (or the controller's successor) out of the controller's receipts, 10 any costs and expenses incurred in and about the preparation and making of 11 the report and the verification of the report that the controller (or the 12 controller's successor) considers reasonable. 13 (4) A person must comply with a requirement made under 14 subsection (1). 15 (5) A reference in this section to the controller's successor includes a 16 reference to a continuing controller. 17 may inspect books 18 Controller 22. A controller of property of a cooperative is entitled to inspect at any 19 reasonable time any records of the cooperative relating to the property and a 20 person must not fail to allow the controller to inspect the records at any 21 reasonable time. 22 controller's accounts 23 Filing 23.(1) A controller of property of a cooperative must file with the 24 registrar an account-- 25 (a) within 28 days after the end of-- 26 (i) 6 months, or the shorter period the controller decides, after 27 the day when the controller became a controller of property 28 of the cooperative; and 29 (ii) each subsequent period of 6 months throughout which the 30

 


 

330 Cooperatives SCHEDULE 4 (continued) controller is a controller of property of the cooperative; and 1 (b) within 28 days after the controller ceases to be a controller of 2 property of the cooperative. 3 (2) An account must be in the approved form and show-- 4 (a) the controller's receipts and payments during-- 5 (i) for an account under subsection (1)(a)--the 6 months or 6 shorter period, as the case requires; or 7 (ii) for an account under subsection (1)(b)--the period 8 beginning at the end of the period to which the last account 9 related, or on the control day, as the case requires and ending 10 on the day when the controller so ceased; and 11 (b) except for an account filed under subsection (1)(a)(i)--the 12 respective aggregates of the controller's receipts and payments 13 since the control day. 14 (3) For-- 15 (a) a receiver appointed under a power contained in an instrument; or 16 (b) anyone else who is in possession, or has control, of property of 17 the cooperative for the purpose of enforcing a charge; 18 the accounts must also show the following-- 19 (c) the amount, if any, owing under the instrument or charge-- 20 (i) for an account filed under subsection (1)(a)(i)--at the end of 21 the control day and at the end of the period to which the 22 account relates; or 23 (ii) otherwise--at the end of the period to which the account 24 relates; and 25 (d) the controller's estimate of the total value, at the end of the period 26 to which the account relates, of the property of the cooperative 27 that is subject to the instrument or charge. 28 (4) The registrar may, of the registrar's own initiative or on the 29 application of the cooperative or a creditor of the cooperative, cause the 30 accounts filed under subsection (1) to be audited by a registered company 31

 


 

331 Cooperatives SCHEDULE 4 (continued) auditor appointed by the registrar. 1 (5) For the audit, the controller must give the auditor any records and 2 information that the auditor requires. 3 (6) If the registrar causes the accounts to be audited on the request of the 4 cooperative or a creditor, the registrar may require the cooperative or 5 creditor, as the case may be, to give security for the payment of the cost of 6 the audit. 7 (7) The costs of an audit under subsection (3) are to be fixed by the 8 registrar. 9 (8) The registrar may, if the registrar thinks it is appropriate, make an 10 order declaring that, for section 5(1), the costs of the audit are taken to be a 11 debt incurred by the controller as mentioned in section 5(1) and, if the order 12 is made, the controller is liable accordingly. 13 (9) A person must comply with a requirement made under this section. 14 of certain debts, out of property subject to floating charge, 15 Payment in priority to claims under charge 16 24.(1) This section applies if-- 17 (a) a receiver is appointed on behalf of the holders of debentures of a 18 cooperative that are secured by a floating charge, or possession is 19 taken or control is assumed, by or on behalf of the holders of 20 debentures of a cooperative, of property comprised in or subject 21 to a floating charge; and 22 (b) at the date of the appointment or of the taking of possession or 23 assumption of control (the "relevant date")-- 24 (i) the cooperative has not commenced to be wound-up 25 voluntarily; and 26 (ii) the cooperative has not been ordered to be wound-up by the 27 Supreme Court. 28 (2) The receiver or other person taking possession or assuming control 29 of property of the cooperative must pay, out of the property coming into 30 his, her or its hands, the following debts or amounts in priority to a claim 31

 


 

332 Cooperatives SCHEDULE 4 (continued) for principal or interest for the debentures-- 1 (a) first, an amount that in a winding-up is payable in priority to 2 unsecured debts under the Corporations Law, section 562 (as 3 adopted and applying under this Act); 4 (b) next, if an auditor of the cooperative had applied to the registrar 5 for consent to his, her or its resignation as auditor and the 6 registrar had refused that consent before the relevant date, the 7 reasonable fees and expenses of the auditor incurred during the 8 period beginning on the day of the refusal and ending on the 9 relevant date; 10 (c) subject to subsections (4) and (5), next, a debt or amount that in a 11 winding-up is payable in priority to other unsecured debts under 12 the Corporations Law, section 556(1)(e), (g) or (h) or 560 (as 13 adopted and applying under this Act). 14 (3) The receiver or other person taking possession or assuming control 15 of property must pay debts and amounts payable under subsection (2)(c) in 16 the same order of priority as is prescribed by the Corporations Law, 17 part 5.6, division 6 (as adopted and applying under this Act) for the debts 18 and amounts. 19 (4) If an auditor of the cooperative had applied to the registrar for consent 20 to his, her or its resignation as auditor and the registrar had, before the 21 relevant date, refused consent, a receiver must, when property comes to the 22 receiver's hands, before paying a debt or amount mentioned in subsection 23 (2)(c), make provision out of the property for the reasonable fees and 24 expenses of the auditor incurred after the relevant date but before the date on 25 which the property comes into the receiver's hands, being fees and 26 expenses for which provision has not already been made under this 27 subsection. 28 (5) If an auditor of the cooperative applies to the registrar for consent to 29 his, her or its resignation as auditor and, after the relevant date, the registrar 30 refuses consent, the receiver must, in relation to property that comes into the 31 receiver's hands after the refusal, before paying any debt or amount 32 mentioned in subsection (2)(c), make provision out of the property for the 33 reasonable fees and expenses of the auditor incurred after the refusal and 34 before the date on which the property comes into the receiver's hands, being 35

 


 

333 Cooperatives SCHEDULE 4 (continued) fees and expenses for which provision has not already been made under this 1 subsection. 2 (6) A receiver must make provision for reasonable fees and expenses of 3 an auditor for a particular period as required by subsection (4) or (5) 4 whether or not the auditor has made a claim for fees and expenses for the 5 period, but if the auditor has not made a claim, the receiver may estimate the 6 reasonable fees and expenses of the auditor for the period and make 7 provision in accordance with the estimate. 8 (7) For this section, the references in the Corporations Law, part 5.6, 9 division 6 (as adopted and applying under this Act) to the relevant date are 10 to be read as references to the date of the appointment of the receiver, or of 11 possession being taken or control being assumed, as the case may be. 12 of controller's duty to make returns 13 Enforcement 25.(1) If a receiver of property of a cooperative-- 14 (a) who has defaulted in making or lodging a return, account or other 15 document or in giving notice required by law fails to make good 16 the default within 14 days after the service on the controller, by a 17 member or creditor of the cooperative or trustee for debenture 18 holders, of a notice requiring the controller to do so; or 19 (b) who has become a controller of property of the cooperative 20 otherwise than by being appointed a receiver of the property by a 21 court and who has, after being required at any time by the 22 liquidator of the cooperative so to do, failed to render proper 23 accounts of, and to vouch, the controller's receipts and payments 24 and to pay over to the liquidator the amount properly payable to 25 the liquidator; 26 the Supreme Court may make an order directing the controller to make 27 good the default within the time specified in the order. 28 (2) An application under subsection (1) may be made-- 29 (a) if subsection (1)(a) applies--by a member or creditor of the 30 cooperative or by a trustee for debenture holders; and 31 (b) if subsection (1)(b) applies--by the liquidator of the cooperative. 32

 


 

334 Cooperatives SCHEDULE 4 (continued) Court may remove controller for misconduct 1 Supreme 26. If, on the application of a cooperative, the Supreme Court is satisfied 2 that a controller of property of the cooperative has been guilty of 3 misconduct in connection with performing or exercising any of the 4 controller's functions and powers, the court may order that, on and after a 5 specified day, the controller cease to act as receiver or give up possession or 6 control, as the case requires, of property of the cooperative. 7 Court may remove redundant controller 8 Supreme 27.(1) The Supreme Court may order that, on and after a specified day, a 9 controller of property of a cooperative-- 10 (a) cease to act as receiver, or give up possession or control, as the 11 case requires, of property of the cooperative; or 12 (b) act as receiver, or continue in possession or control, as the case 13 requires, only of specified property of the cooperative. 14 (2) The Supreme Court may make an order under subsection (1) if it is 15 satisfied that the objectives for which the controller was appointed, or 16 entered into possession or took control of property of the cooperative, as the 17 case requires, have been achieved, so far as is reasonably practicable, except 18 in relation to property specified in the order under subsection (1)(b). 19 (3) For subsection (2), the Supreme Court may have regard to-- 20 (a) the cooperative's interests; and 21 (b) the interests of the holder of the charge that the controller is 22 enforcing; and 23 (c) the interests of the cooperative's other creditors; and 24 (d) another relevant matter. 25 (4) The Supreme Court may make an order under subsection (1) on the 26 application of a liquidator appointed for the purposes of winding-up the 27 cooperative in insolvency. 28 (5) An order under subsection (1) may also prohibit the holder of the 29 charge from doing any or all of the following, except with the leave of the 30

 


 

335 Cooperatives SCHEDULE 4 (continued) Supreme Court-- 1 (a) appointing a person as receiver of property of the cooperative 2 under a power contained in an instrument relating to the charge; 3 (b) entering into possession, or taking control, of the property for the 4 purpose of enforcing the charge; 5 (c) appointing a person to enter into possession or take control 6 (whether as agent for the chargee or for the cooperative). 7 of ss 26 and 27 8 Effect 28.(1) Except as expressly provided in section 26 or 27,165 an order 9 under section 26 or 27 does not affect a charge on property of a cooperative. 10 (2) Nothing in section 26 or 27 limits another power of the Supreme 11 Court to remove, or otherwise deal with, a controller of property of a 12 cooperative (for example, the Supreme Court's powers under section 14). 13 14 165 Schedule 4, section 26 (Supreme Court may remove controller for misconduct) or 27 (Supreme Court may remove redundant controller)

 


 

336 Cooperatives CHEDULE 5 1 S AVINGS AND TRANSITIONAL 2 S section 471 3 4 Definitions 1. In this schedule-- 5 "repealed Acts" means-- 6 (a) the Cooperative and Other Societies Act 1967; or 7 (b) the Primary Producers' Cooperative Associations Act 1923. 8 "transferred cooperative" means a corporation that is taken under this 9 schedule to be a cooperative, association or federation registered under 10 this Act. 11 savings 12 General 2. Subject to this Act, each person, thing and circumstance appointed or 13 created under the Cooperative and Other Societies Act 1967 or the Primary 14 Producers' Cooperative Associations Act 1923 or existing or continuing 15 under those Acts immediately before the commencement of this Act 16 continues to have the same status, operation and effect as it would have had 17 if this Act had not been enacted. 18 of existing cooperatives 19 Saving 3.(1) Each existing corporation that was either of the following is taken 20 to be an association registered under this Act-- 21 (a) on the repeal of the Cooperative and Other Societies Act 1967--a 22 federation or league of societies and primary producers 23 associations; 24 (b) on the repeal of the Primary Producers' Cooperative 25 Associations Act 1923--a federation. 26

 


 

337 Cooperatives SCHEDULE 5 (continued) (2) Each existing corporation that was either of the following is taken to 1 be a cooperative registered under this Act-- 2 (a) on the repeal of the Cooperative and Other Societies Act 1967--a 3 society (other than a federation or league of societies and primary 4 producers associations); 5 (b) on the repeal of the Primary Producers' Cooperative 6 Associations Act 1923--an association. 7 (3) Each transferred cooperative under this section is the same legal 8 entity as it was before the commencement with the same name, rules, 9 directors and membership as it had immediately before the commencement 10 of this Act. 11 association or federation started to be formed 12 Society, 4.(1) If, before the repeal of the Cooperative and Other Societies Act 13 1967 a meeting to form a society had been held under section 27 of that Act 14 but the society had not been registered as a society under that Act-- 15 (a) that Act continues to apply to the formation of the society as if it 16 had not been repealed; and 17 (b) on registration of the society under section 31 of that Act, the 18 society is taken to be a cooperative registered under this Act. 19 (2) If, before the repeal of the Primary Producers' Cooperative 20 Associations Act 1923 a meeting to form an association had been held under 21 section 8 of that Act but the association had not been registered as an 22 association under that Act-- 23 (a) that Act continues to apply to the formation of the association as 24 if it had not been repealed; and 25 (b) on the registration of the association under section 10 of that Act, 26 the association is taken to be a cooperative registered under this 27 Act. 28 (3) If, before the repeal of the Primary Producers' Cooperative 29 Associations Act 1923 an application to form a federation had been filed 30 under section 19 or 19A of that Act but the federation had not been 31

 


 

338 Cooperatives SCHEDULE 5 (continued) registered as a federation under that Act-- 1 (a) that Act continues to apply to the formation of the body as a 2 federation as if it had not been repealed; and 3 (b) on the registration of the body as a federation under section 10 of 4 that Act, the federation is taken to be an association registered 5 under this Act. 6 (4) Each transferred cooperative under this section is the same legal 7 entity as it was before it became a cooperative under this Act with the same 8 name, rules, directors and membership as it had immediately before it 9 became a cooperative under this Act. 10 (5) A certificate issued under the Cooperative and Other Societies Act 11 1967, section 31 as continued in force under this section is taken to be a 12 certificate issued under section 21 of this Act. 13 (6) A certificate issued under the Primary Producers' Cooperative 14 Associations Act 1923, section 10 as continued in force under this section is 15 taken to be a certificate issued under section 21 of this Act. 16 between societies or associations 17 Amalgamation 5.(1) If, before the repeal of the Cooperative and Other Societies Act 18 1967 an application by 2 or more societies to amalgamate under section 30 19 of that Act was made, that Act continues to apply to the application as if that 20 Act had not been repealed. 21 (2) On registration of the amalgamated society under the Cooperative 22 and Other Societies Act 1967, the society is taken to be a cooperative 23 registered under this Act. 24 (3) If, before the repeal of the Primary Producers' Cooperative 25 Associations Act 1923 an application by 2 or more associations under 26 part 4A of that Act was made, that Act continues to apply to the application 27 as if that Act had not been repealed. 28 (4) On registration of the amalgamated association under the Primary 29 Producers' Cooperative Associations Act 1923, the association is taken to 30 be a cooperative registered under this Act. 31

 


 

339 Cooperatives SCHEDULE 5 (continued) (5) Each transferred cooperative under this section is the same legal 1 entity as it was immediately before it became a cooperative under this Act 2 with the same name, rules, directors and membership as it had immediately 3 before it became a cooperative under this Act. 4 (6) A certificate issued under the Cooperative and Other Societies Act 5 1967, section 31 as continued in force under this section is taken to be a 6 certificate issued under section 296 of this Act.166 7 (7) A certificate issued under the Primary Producers' Cooperative 8 Associations Act 1923, section 10 as continued in force under this section is 9 taken to be a certificate issued under section 296 of this Act. 10 between societies and associations 11 Amalgamation 6.(1) If, before the repeal of the Cooperative and Other Societies Act 12 1967 an application is made by a society and an association under section 13 36B of that Act, that Act continues to apply as if it had not been repealed. 14 (2) If, before the repeal of the Primary Producers' Cooperative 15 Associations Act 1923 an application is made by a society and an 16 association under section 25D of that Act, that Act continues to apply to the 17 application as if that Act had not been repealed. 18 (3) On the registration of the amalgamated body under the relevant Act, 19 the body is taken to be a cooperative registered under this Act. 20 (4) Each transferred cooperative under this section is the same legal 21 entity as it was immediately before it became a cooperative under this Act 22 with the same name, rules, directors and membership as it had immediately 23 before it became a cooperative under this Act. 24 (5) A certificate issued under the Cooperative and Other Societies Act 25 1967, section 36B as continued in force under this section is taken to be a 26 certificate issued under section 296167 of this Act. 27 (6) A certificate issued under the Primary Producers' Cooperative 28 166 Section 296 (Approval of merger) 167 Section 296 (Approval of merger)

 


 

340 Cooperatives SCHEDULE 5 (continued) Associations Act 1923, section 25D as continued in force under this section 1 is taken to be a certificate issued under section 296 of this Act. 2 of association or company into a society or society or 3 Conversion company into an association 4 7.(1) If, before the repeal of the Cooperative and Other Societies Act 5 1967 an application is made by an association under section 36A or a 6 company under section 37 of that Act, that Act continues to apply to the 7 application as if that Act had not been repealed. 8 (2) If, before the repeal of the Primary Producers' Cooperative 9 Associations Act 1923 an application is made by an association or company 10 under section 25C of that Act, that Act continues to apply to an application 11 as if that Act had not been repealed. 12 (3) On registration of the converted body under the Cooperative and 13 Other Societies Act 1967 or the Primary Producers' Cooperative 14 Associations Act 1923, the body is taken to be a cooperative registered 15 under this Act. 16 (4) Each transferred cooperative under this section is the same legal 17 entity as it was immediately before it became a cooperative under this Act 18 with the same name, rules, directors and membership as it had immediately 19 before it became a cooperative under this Act. 20 (5) A certificate issued under the Cooperative and Other Societies Act 21 1967, section 36A or 37 as continued in force under this section is taken to 22 be a certificate issued under section 21 or 26168 of this Act, as the case 23 requires. 24 (6) A certificate issued under the Primary Producers' Cooperative 25 Associations Act 1923, section 25C as continued in force under this section 26 is taken to be a certificate issued under section 21 or 26 of this Act, as the 27 case requires. 28 168 Section 21 (Incorporation and certificate of registration) or 26 (Certificate of registration)

 


 

341 Cooperatives SCHEDULE 5 (continued) to conform with Act 1 Rules 8.(1) A transferred cooperative must bring its rules into conformity with 2 this Act within 2 years after the commencement or, if the registrar approves 3 a further period for a particular cooperative, the further period approved by 4 the registrar. 5 (2) The rules of the transferred cooperative are taken to be valid until 6 whichever of the following first happens-- 7 (a) the cooperative complies with subsection (1); 8 (b) the relevant period under subsection (1) ends. 9 (3) If there is an inconsistency between a provision of this Act and the 10 rules of the cooperative about the procedure for altering the cooperative's 11 rules, the provision of this Act prevails to the extent of the inconsistency. 12 (4) This section does not affect the operation of part 3, division 2169 in 13 relation to the rules of a transferred cooperative. 14 to certain rules 15 Changes 9.(1) This section applies if, in the registrar's opinion, the rules of a 16 transferred cooperative should be altered to achieve conformity with this 17 Act. 18 (2) The registrar may, by written notice given to the transferred 19 cooperative, require it to alter its rules within a stated period and in a way 20 stated in the notice or another way approved by the registrar. 21 (3) If, within the stated period, the cooperative does not alter its rules as 22 required by the notice, the registrar may alter the rules by notation on the 23 registered copy of the rules. 24 (4) The registrar must give written notice to the cooperative of an 25 alteration of its rules made by the registrar under subsection (3). 26 (5) An alteration to rules made by the registrar under this section is as 27 169 Part 3, division 2 (Rights and liabilities of members)

 


 

342 Cooperatives SCHEDULE 5 (continued) valid and effective as an alteration made and registered under part 5170 of 1 this Act. 2 to contain active membership provisions 3 Rules 10. The board of directors of a transferred cooperative must comply with 4 part 6, division 2171 within 2 years after the commencement or, if the 5 registrar approves a further period for a particular cooperative, the further 6 period approved by the registrar. 7 resolutions 8 Special 11.(1) A special resolution of a transferred cooperative under the 9 Cooperative and Other Societies Act 1967 or the Primary Producers' 10 Cooperative Associations Act 1923 that is not registered under the relevant 11 Act before the commencement of this Act may be registered by the registrar 12 under this Act. 13 (2) Anything else necessary to be done because of a special resolution to 14 give effect to the resolution but not done before the commencement of this 15 Act may continue to be done after the commencement of this Act. 16 17 Documents 12. A certificate or other document about a transferred cooperative and 18 issued or registered by, or filed with or given to, a registrar under the 19 Cooperative and Other Societies Act 1967 or the Primary Producers' 20 Cooperative Associations Act 1923 has effect as a certificate or document 21 issued or registered by, or filed with or given to, the registrar under this Act. 22 accounts provisions apply to transferred cooperatives 23 Existing 13.(1) Despite this Act, the Cooperative and Other Societies Act 1967, 24 sections 54 to 56 and 85 to 88 or the Primary Producers' Cooperative 25 170 Part 5 (Rules) 171 Part 6, division 2 (Rules to contain active membership provisions)

 


 

343 Cooperatives SCHEDULE 5 (continued) Associations Regulation 1987, schedule 4, sections 9, 11 and 12 continues 1 to apply to a transferred cooperative for the financial year for the cooperative 2 in which this section commences. 3 (2) Part 9, divisions 5 and 6172 of this Act do not apply to a financial year 4 of a transferred cooperative to which subsection (1) applies. 5 6 Winding-up 14. If, before the repeal of the repealed Act, a transferred cooperative had 7 started to be wound-up or dissolved under-- 8 (a) the Cooperative and Other Societies Act 1967, part 8; or 9 (b) the Primary Producers' Cooperative Associations Regulation 10 1987, schedule 4, sections 50 and 51; 11 the provisions of that Act or regulation continue to apply to the winding-up 12 or dissolution as if that Act had not been repealed. 13 or inquiry 14 Inspection 15. If, before the repeal of the repealed Acts, an inspection or inquiry was 15 started under the Cooperative and Other Societies Act 1967, part 10 or the 16 Primary Producers' Cooperative Associations Regulation 1987, schedule 17 4 in relation to a transferred cooperative, those provisions continue to apply 18 to the inspection or inquiry as if those Acts had not been repealed. 19 20 Registrar 16.(1) The person holding office as registrar under a repealed Act 21 immediately before the commencement of this Act is taken, on the 22 commencement, to be appointed as deputy registrar under this Act. 23 (2) The person holding office as registrar under the repealed Primary 24 Producers' Cooperative Associations Act 1923 immediately before the 25 repeal is taken to be appointed as assistant registrar under this Act. 26 172 Part 9, divisions 5 (Accounts and audit) and 6 (Registers, records and returns)

 


 

344 Cooperatives SCHEDULE 5 (continued) (3) Subject to this Act, anything of a continuing nature done or started 1 before the repeal of the repealed Acts by, for or in relation to a person 2 mentioned in subsection (1) or (2) is not affected by this Act and continues 3 to have the same status, operation and effect as it would have had if the 4 relevant Act had not been repealed. 5 (4) A reference in a provision of the Cooperative and Other Societies Act 6 1967 or the Primary Producers' Cooperative Associations Regulation 7 1987 to a registrar continued in operation by this schedule is taken, for the 8 continued operation of the provision, to be a reference to the registrar under 9 this Act. 10 references 11 Superseded 17.(1) A reference in another Act or document to the Cooperative and 12 Other Societies Act 1967 may, if the context permits, be taken to be a 13 reference to this Act. 14 (2) A reference in another Act or document to the Primary Producers' 15 Cooperative Associations Act 1923 may, if the context permits, be taken to 16 be a reference to this Act. 17 (3) A reference in any other Act or document to-- 18 (a) a society under the Cooperative and Other Societies Act 1967; or 19 (b) an association or federation under the Primary Producers' 20 Cooperative Associations Act 1923; 21 may, if the context permits, be taken to be a reference to a cooperative or 22 association registered under this Act. 23 reserve fund 24 Capital 18. The amount standing to the credit of a capital reserve fund under the 25 Cooperative and Other Societies Act 1967, section 48 is taken to form part 26 of the general reserves of a transferred cooperative. 27

 


 

345 Cooperatives SCHEDULE 5 (continued) for certificate of registration 1 Application 19.(1) On the written application of a transferred cooperative, the 2 registrar must issue to the applicant a certificate of registration under this 3 Act. 4 (2) The registrar may issue a certificate of registration to a transferred 5 cooperative under subsection (1) only if the transferred cooperative 6 surrenders to the registrar its certificate of registration under the previous 7 law or satisfies the registrar that the certificate has been lost or destroyed. 8 9 Securities 20. A security registered under the Primary Producers' Cooperative 10 Associations Act 1923, section 28 before the commencement of this Act is 11 taken to be a charge registered under section 262173 of this Act. 12 to a company 13 Conversion 21.(1) If, before the commencement of this Act, a society under the 14 Cooperative and Other Societies Act 1967 had passed a special resolution 15 under section 38 of that Act to convert itself into, or to amalgamate with, a 16 company under the Corporations Law but the society had not been 17 registered as, or amalgamated with, a company under the Corporations 18 Law, that Act continues to apply to the conversion or amalgamation. 19 (2) If, before the commencement of this Act, an association under the 20 Primary Producers' Cooperative Associations Act 1923 had passed a 21 special resolution under section 25A of that Act to apply to be registered as 22 a company under the Corporations Law but the association had not been 23 registered as a company, that Act continues to apply to the application by 24 the association to be registered as a company. 25 companies 26 Cooperative 22.(1) This section applies to a corporation exempted from the operation 27 173 Section 262 (Registration of charges)

 


 

346 Cooperatives SCHEDULE 5 (continued) of the Primary Producers' Cooperative Associations Act 1923, section 22 1 immediately before the repeal of that Act that is a foreign cooperative under 2 this Act. 3 (2) Despite part 14,174 a corporation to which this section applies may 4 carry on business in Queensland as a foreign cooperative without 5 registration but must become registered as a foreign cooperative under this 6 Act within 2 years after the commencement of this Act. 7 cooperatives maximum permissible level of share interest 8 Transferred 23. If, before the repeal of the repealed Acts, a person has a relevant 9 interest in shares of the cooperative the nominal value of which is more than 10 20% of the nominal value of the issued share capital of the cooperative, the 11 person may, despite section 273, continue to have a relevant interest in the 12 shares. 13 14 174 Part 14 (Foreign cooperatives)

 


 

347 Cooperatives CHEDULE 6 1 S TRANSITIONAL PROVISIONS FOR TRADING 2 COOPERATIVES WITHOUT SHARE CAPITAL 3 section 471 4 of schedule 5 Purpose 1. The purpose of this schedule is to make additional transitional 6 provision for certain trading cooperatives that do not have share capital. 7 of schedule 8 Application 2.(1) This schedule applies despite sections 137 and 138.175 9 (2) However, this schedule does not apply to the Tablelands' 10 Co-operative Artificial Stock Breeding Association Limited. 11 12 Definitions 3. In this schedule-- 13 "cooperative without share capital" means a transferred cooperative 14 under schedule 5176 that, immediately before the commencement of 15 this Act, was registered under the Primary Producers' Cooperative 16 Associations Act 1923 and has no issued share capital. 17 without share capital taken to be trading cooperative 18 Cooperative 4. A cooperative without share capital is taken to be a trading cooperative. 19 175 Sections 137 (Former shareholders to be taken to be shareholders for certain purposes) and 138 (Entitlements of former shareholders on mergers etc.) 176 Schedule 5 (Savings and transitional)

 


 

348 Cooperatives SCHEDULE 6 (continued) provisions do not apply to cooperatives without share capital 1 Certain 5. Section 14(1) and (2)177 do not apply to a cooperative without share 2 capital. 3 matters for rules 4 Additional 6. In addition to the matters specified in schedule 1 178 for the rules of 5 cooperatives, the rules of a trading cooperative without share capital must 6 set out or make provision for each of the following-- 7 (a) how a surplus may be distributed; 8 (b) the allocation of a deficiency on the winding-up of the 9 cooperative; 10 (c) matters that may be prescribed under a regulation. 11 of ss 137 and 138 to trading cooperatives without share 12 Application capital 13 7.(1) Sections 137 and 138179 apply with changes to a trading 14 cooperative without share capital. 15 (2) The changes to section 137 are as follows-- 16 (a) section 137(1), `shares in a cooperative have'-- 17 omit, insert-- 18 `membership in a cooperative has'; 19 (b) section 137(1), `the holder of shares in'-- 20 omit, insert-- 21 `a member of'; 22 177 Section 14 (Trading cooperatives) 178 Schedule 1 (Matters for which rules must make provision) 179 Sections 137 (Former shareholders to be taken to be shareholders for certain purposes) and 138 (Entitlements of former shareholders on mergers etc.)

 


 

349 Cooperatives SCHEDULE 6 (continued) (c) section 137(1)(b) and (c), `shareholder'-- 1 omit, insert-- 2 `member'; 3 (d) section 137(1)(c), `shares were'-- 4 omit, insert-- 5 `membership was'. 6 (3) The changes to section 138 are as follows-- 7 (a) section 138(1) and (4)(b), `shares'-- 8 omit, insert-- 9 `membership'; 10 (b) section 138(1), `are'-- 11 omit, insert-- 12 `is'; 13 (c) section 138(2), `held shares'-- 14 omit, insert-- 15 `membership'; 16 (d) section 138(2), `those shares'-- 17 omit, insert-- 18 `membership'; 19 (e) section 138(2) and (3)(a), `person's shares'-- 20 omit, insert-- 21 `person's membership'; 22 (f) section 138(3), `The extent of the forfeited shareholding'-- 23 omit, insert-- 24 `The forfeited membership'. 25 26

 


 

350 Cooperatives CHEDULE 7 1 S ACTS AMENDED 2 section 472 3 ASSOCIATIONS INCORPORATION ACT 1981 4 1. Section 2-- 5 insert-- 6 ` "cooperative" means a cooperative under the Cooperatives Act. 7 "Cooperatives Act" means the Cooperatives Act 1997.'. 8 2. Part 11, heading-- 9 omit, insert-- 10 `PART 11--CHANGE IN STATUS OF 11 INCORPORATED ASSOCIATIONS AND OTHER 12 ENTITIES 13 `Division 1--Interpretation'. 14 3. Section 95-- 15 omit, insert-- 16 `Purpose of part 17 `95. The purpose of this part is to facilitate changes in the status of 18 incorporated associations and certain other entities.'. 19

 


 

351 Cooperatives SCHEDULE 7 (continued) 4. Section 96, definition "former society", after `means'-- 1 insert-- 2 `a cooperative or'. 3 5. Section 96, definition "registrar" and "transfer day"-- 4 omit, insert-- 5 ` "registrar"-- 6 (a) for a cooperative--means the registrar under the Cooperatives 7 Act; or 8 (b) for a friendly society--means the registrar under the Friendly 9 Societies Act 1991. 10 "transfer day", for a cooperative or friendly society that becomes an 11 incorporated association under this part, means the day when the chief 12 executive issues a certificate of incorporation for the former 13 cooperative or friendly society.'. 14 6. After section 96-- 15 insert, as heading-- 16 `Division 2--Incorporation of certain eligible friendly societies'. 17 7. Section 99(3), `(the "transfer day")'-- 18 omit. 19 8. After section 105-- 20 insert-- 21

 


 

352 Cooperatives SCHEDULE 7 (continued) `Division 3--Incorporation of cooperatives 1 `Application of division 2 `105A. This division does not apply to a cooperative if, under the 3 Cooperatives Act-- 4 (a) there is a charge required to be registered over property of the 5 cooperative; or 6 (b) the registrar has given the cooperative a direction to transfer its 7 engagements to another cooperative and the direction is still in 8 force; or 9 (c) an administrator is conducting the cooperative's affairs; or 10 (d) the registrar has directed the cooperative to suspend its operations 11 and the direction is still in force; or 12 (e) the cooperative is being wound-up; or 13 (f) an application to wind-up the cooperative has been made but the 14 application has not been finally dealt with; or 15 (g) the cooperative is being dissolved; or 16 (h) a receiver, or receiver and manager, is acting for the cooperative; 17 or 18 (i) the administration of a compromise or arrangement between the 19 cooperative and its creditors has not been finalised; or 20 (j) an application has been made to a court for approval of a 21 compromise or arrangement between the cooperative and its 22 creditors but the court has not approved or refused to approve the 23 application. 24 `Notice of cooperative's proposal to become incorporated association 25 `105B. Within 1 month after a cooperative passes a special resolution 26

 


 

353 Cooperatives SCHEDULE 7 (continued) under the Cooperatives Act, section 301180 to become an incorporated 1 association, the cooperative must give to the chief executive-- 2 (a) a copy of the resolution approving the proposal to become an 3 incorporated association; and 4 (b) if relevant, a copy of each of the following resolutions-- 5 (i) the resolution deciding the proposed association's name; 6 (ii) the resolution to change the cooperative's rules to comply 7 with this Act. 8 `Application for incorporation of cooperative as association 9 `105C.(1) A cooperative may apply to the chief executive to become an 10 incorporated association. 11 `(2) However, a cooperative may not apply to become an incorporated 12 association unless it has a president and treasurer. 13 `(3) The application must be made in the approved form and be 14 accompanied by the fee prescribed under a regulation and each of the 15 following-- 16 (a) a copy of evidence of registration under the Cooperatives Act of 17 the special resolution approving the proposal to become an 18 incorporated association; 19 (b) a copy, certified by the cooperative's secretary as a true copy, of 20 the cooperative's certificate of registration; 21 (c) a copy of the proposed rules of the proposed incorporated 22 association, certified by the cooperative's secretary as complying 23 with this Act. 24 `Incorporation 25 `105D.(1) If, after considering an application under this part, the chief 26 executive is satisfied of the matters requiring satisfaction, the chief executive 27 180 Section 301 (Requirements before application can be made)

 


 

354 Cooperatives SCHEDULE 7 (continued) must promptly issue a certificate of incorporation under this Act for the 1 proposed incorporated association. 2 `(2) The matters requiring satisfaction are as follows-- 3 (a) the applicant is a cooperative that has complied with the 4 Cooperatives Act, part 12, division 2;181 5 (b) the cooperative has complied with the requirements to become an 6 for incorporated association. 7 `(3) On issue of the certificate of incorporation, the cooperative is 8 incorporated as an incorporated association under this Act. 9 `Chief executive must inform registrar of incorporation 10 `105E. Within 7 days after the transfer day for an incorporated 11 association, the chief executive must give the registrar a copy of the 12 certificate of incorporation for the association. 13 `Registrar to give records to chief executive 14 `105F. As soon as practicable after a cooperative becomes an 15 incorporated association, the registrar must give the chief executive all 16 records about the former cooperative in the registrar's possession. 17 `Recording of interests in land 18 `105G.(1) Within 30 days after a cooperative becomes an incorporated 19 association, the secretary of the association must give to the registrar of 20 titles, and anyone else required or permitted to record particulars necessary 21 to identify interests in land, notice of the vesting of land of the former 22 cooperative in the association. 23 `(2) The registrar of titles must record the particulars necessary to give 24 effect to the vesting of the land in the incorporated association. 25 `(3) If a written request is made under subsection (1), production of the 26 181 Part 12, division 2 (Transfer of incorporation)

 


 

355 Cooperatives SCHEDULE 7 (continued) instrument of title to the land is not required when the request is made, and 1 the registrar of titles or other person is authorised to make necessary entries 2 on the instrument title when it is next produced to the registrar or other 3 person. 4 `Directors of former cooperative 5 `105H. On the transfer day, the directors of the former cooperative 6 become the members of the association's management committee. 7 `Office holders of former cooperative become office holders of 8 incorporated association 9 `105I. On the transfer day, the president, treasurer and secretary of the 10 former cooperative become the president, treasurer and secretary, 11 respectively, of the incorporated association. 12 `Rules 13 `105J.(1) On the transfer day, the rules of the former cooperative 14 become the rules of the association as if they had been sanctioned by the 15 chief executive under this Act. 16 `(2) However, if the former cooperative had, by special resolution, 17 amended its rules to comply with this Act and the amendment does not take 18 effect until its incorporation under this Act, subsection (1) applies to the 19 rules as amended. 20 `Division 4--Registration of incorporated associations as cooperatives 21 `Application of division 22 `105K. This division does not apply to an incorporated association if-- 23 (a) the association is being wound-up; or 24 (b) an application to wind-up the association has been made but not 25 dealt with; or 26

 


 

356 Cooperatives SCHEDULE 7 (continued) (c) the association's incorporation is being cancelled; or 1 (d) a receiver, or receiver and manager, has been appointed and is 2 acting for the association; or 3 (e) the association has entered into a compromise or arrangement 4 with its creditors but the administration of the compromise or 5 arrangement has not been concluded; or 6 (f) an application has been made to a court for approval of a 7 compromise or arrangement by the association with its creditors 8 but the court has not approved or refused to approve the 9 application. 10 `Chief executive's consent needed to proposed registration as 11 cooperative 12 `105L.(1) An incorporated association that has decided by special 13 resolution to register as a cooperative may, within 14 days after passing the 14 resolution, apply to the chief executive for the chief executive's consent to 15 the association's proposed registration as a cooperative. 16 `(2) The application must be in the approved form and accompanied by a 17 copy of the special resolution. 18 `(3) The chief executive may require the association to give to the chief 19 executive the information the chief executive reasonably requires to consider 20 the application. 21 `Consent to proposed registration as cooperative 22 `105M.(1) If, after considering an application by an incorporated 23 association, the chief executive is satisfied of the matters requiring 24 satisfaction, the chief executive must promptly give to the association a 25 certificate stating the chief executive is satisfied of the matters and consents 26 to the association's proposed registration as a cooperative. 27 `(2) The matters requiring satisfaction are as follows-- 28 (a) the association is an incorporated association; 29

 


 

357 Cooperatives SCHEDULE 7 (continued) (b) the association has decided by special resolution to register as a 1 cooperative; and 2 (c) there are reasonable grounds for believing the association will, if 3 it registers as a cooperative, be able to comply with the 4 Cooperatives Act. 5 `(3) The certificate expires 30 days after it is given to the association. 6 `Cancellation of registration and incorporation 7 `105N.(1) An incorporated association that becomes registered as a 8 cooperative under the Cooperatives Act must surrender its certificate of 9 incorporation under this Act or, if the certificate has been lost, stolen or 10 destroyed, give to the chief executive a statutory declaration stating it has 11 been lost, stolen or destroyed. 12 `(2) On receipt of the certificate of incorporation or a statutory declaration 13 satisfying the chief executive that the certificate has been lost, stolen or 14 destroyed, the chief executive must-- 15 (a) cancel the incorporated association's registration; and 16 (b) cancel the incorporated association's certificate of incorporation; 17 and 18 (c) give the registrar all records about the former incorporated 19 association in the chief executive's possession. 20 `Division 5--General'. 21 CORPORATIONS (QUEENSLAND) ACT 1990 22 1. Section 93(a)-- 23 omit, insert-- 24 `(a) a cooperative within the meaning of the Cooperatives Act 1997, 25 schedule 8, dictionary, definition "cooperative";'. 26

 


 

358 Cooperatives SCHEDULE 7 (continued) 2. Section 93(d)-- 1 omit. 2 DAIRY INDUSTRY ACT 1993 3 1. Section 3, definition "processor", paragraph (a)-- 4 omit, insert-- 5 `(a) a cooperative registered under the Cooperatives Act 1997 that 6 arranges the sale or transportation of dairy produce produced by 7 its members; and'. 8 INANCIAL INTERMEDIARIES ACT 1996 9 F 1. Part 1, division 4-- 10 omit. 11 RUIT MARKETING ORGANISATION ACT 1923 12 F 1. Section 2, definition "approved association"-- 13 omit, insert-- 14 ` "approved association" means a cooperative registered under the 15 Cooperatives Act 1997 that is declared under a regulation to be 16 representative of fruit and vegetable growers.'. 17

 


 

359 Cooperatives SCHEDULE 7 (continued) INDUSTRIAL DEVELOPMENT ACT 1963 1 1. Section 3, definition "corporation", paragraph (b), from 2 `association formed' to `1967'-- 3 omit, insert-- 4 `registered under the Cooperatives Act 1997'. 5 PENALTIES AND SENTENCES ACT 1992 6 1. Section 5(1)-- 7 insert-- 8 `(aa)for the Cooperatives Act 1997--$100; or'. 9 RIMARY PRODUCERS' ORGANISATION AND 10 P MARKETING ACT 1926 11 1. Section 2, definition "affiliated body", from `association registered' 12 to `1923'-- 13 omit, insert-- 14 `cooperative registered under the Cooperatives Act 1997'. 15 2. Section 13(1)(d), at the end-- 16 insert-- 17 `or in a cooperative registered under the Cooperatives Act 1997 whose 18 members are primary producers'. 19

 


 

360 Cooperatives SCHEDULE 7 (continued) 3. Section 40(1), definition "association", `an association' to `1923'-- 1 omit, insert-- 2 `a cooperative registered or proposed to be registered under the 3 Cooperatives Act 1997'. 4 4. Section 56(2)(j), `association formed' to `1923-- 5 omit, insert-- 6 `registered under the Cooperatives Act 1997'. 7 AWMILLS LICENSING ACT 1936 8 S 1. Section 2, definition "company", from `primary producers 9 cooperative association'-- 10 omit, insert-- 11 `cooperative registered under the Cooperatives Act 1997'. 12 STAMP ACT 1894 13 1. Section 69B, heading, `cooperative associations'-- 14 omit, insert-- 15 `cooperatives'. 16 2. Section 69B(1), from `a primary' to `Act 1923'-- 17 omit, insert-- 18 `a cooperative registered under the Cooperatives Act 1997 whose 19 members are primary producers'. 20

 


 

361 Cooperatives SCHEDULE 7 (continued) 3. Schedule 1, under the heading Mortgage, bond, debenture and 1 covenant, exemption 5, from `a primary' to `1923'-- 2 omit, insert-- 3 `a cooperative registered under the Cooperatives Act 1997 whose 4 members are primary producers'. 5 6

 


 

362 Cooperatives CHEDULE 8 1 S ICTIONARY 2 D section 5 3 "accounting records" include-- 4 (a) invoices, receipts, orders for the payment of money, bills of 5 exchange, cheques, promissory notes, vouchers and other 6 documents of prime entry; and 7 (b) documents and records that record those entries; and 8 (c) working papers and other documents necessary to explain the 9 methods and calculations by which accounts are made up. 10 "accounts" means profit and loss accounts and balance sheets and includes 11 statements, reports and notes (other than auditors' reports and 12 directors' reports) attached to, or intended to be read with, the accounts 13 or balance sheets. 14 "administrator" for schedule 4 see section 1 of that schedule.182 15 "affairs" for part 15, division 2 see section 408.183 16 "agreement" means an agreement, arrangement or understanding-- 17 (a) whether formal or informal or partly formal and partly informal; 18 or 19 (b) whether written or oral or partly written and partly oral; or 20 (c) whether or not having legal or equitable force and whether or not 21 based on legal or equitable rights. 22 "alter", the rules of a cooperative, includes add to, substitute and rescind. 23 182 Schedule 4, section 1 (Interpretation) 183 Section 408 (Definitions for division)

 


 

363 Cooperatives SCHEDULE 8 (continued) "appropriate registrar" for part 14, division 3 see section 371.184 1 "approved form" see section 467.185 2 "associate" see schedule 2, section 18.186 3 "association" means an association registered under this Act. 4 "board" means the board of directors of a cooperative and includes a 5 committee of management of a cooperative. 6 "carrying on business" see section 360.187 7 "chargee" for schedule 3, part 2, division 5 see section 32 of that 8 schedule.188 9 "component cooperative" means a member of an association. 10 "control" for part 9, division 5 see section 231.189 11 "control day" for schedule 4 see section 1 of that schedule.190 12 "controller" for schedule 4 see section 1 of that schedule.191 13 "cooperative" means-- 14 (a) for this Act other than schedule 3 or 4--a body registered under 15 this Act as a cooperative and includes an association or federation; 16 or 17 (b) for schedule 3, part 1--see section 1 of that schedule;192 or 18 184 Section 371 (Who is the appropriate registrar) 185 Section 467 (Approval of forms) 186 Schedule 2, section 18 (Associates of a corporation) 187 Section 360 (Meaning of "carrying on business") 188 Schedule 3, section 32 (Definitions) 189 Section 231 (Meaning of "entity" and "control") 190 Schedule 4, section 1 (Interpretation) 191 Schedule 4, section 1 (Interpretation) 192 Schedule 3, section 1 (Interpretation)

 


 

364 Cooperatives SCHEDULE 8 (continued) (c) for schedule 4--see section 1 of that schedule.193 1 "cooperative venture" for part 15 see section 380.194 2 "cooperatives law" for part 14 see section 357.195 3 "costs" for part 15, division 2 see section 408.196 4 "critical day" for schedule 3, part 2, division 4 see section 26 of that 5 schedule.197 6 "daily newspaper" for schedule 4 see section 1 of that schedule.198 7 "debenture" means a document issued by a cooperative that evidences or 8 acknowledges indebtedness of the cooperative for money that is or 9 may be deposited with or lent to the cooperative (whether a charge on 10 property of the cooperative or not) and includes a unit of a debenture, 11 but does not include-- 12 (a) a cheque, order for the payment of money or bill of exchange; or 13 (b) a promissory note having a face value of not less than $50 000; or 14 (c) another document of a class prescribed under a regulation as 15 exempt from this definition. 16 "deed of arrangement" means a deed of arrangement executed under the 17 Corporations Law, part 5.3A (as adopted and applying under this Act) 18 or a deed of that type as varied and in force from time to time. 19 "deposit taking cooperative" means a cooperative permitted under 20 section 252199 to accept money on deposit. 21 "director", of a cooperative, includes-- 22 193 Schedule 4, section 1 (Interpretation) 194 Section 380 (Definitions for part) 195 Section 357 (Definitions for part) 196 Section 408 (Definitions for division) 197 Schedule 3, section 26 (Definitions) 198 Schedule 4, section 1 (Interpretation) 199 Section 252 (Limits on deposit taking)

 


 

365 Cooperatives SCHEDULE 8 (continued) (a) a person who occupies or acts in the position of a director or 1 member of the board of a cooperative, whether or not the person 2 is called a director and whether or not the person is validly 3 appointed or properly authorised to act in the position; and 4 (b) a person under whose directions or instructions the directors or 5 members of the board of directors of the cooperative are 6 accustomed to act. 7 "dissenting shareholder", for part 13, division 3 see section 345.200 8 "document of title" for schedule 3, part 1 see section 1 of that schedule.201 9 "entity" for part 9, division 5 see section 231.202 10 "excluded shares", for part 13, division 3 see section 345.203 11 "federation" means a federation registered under this Act. 12 "foreign cooperative" means a corporation registered, incorporated or 13 formed under, or subject to, a law in force outside Queensland 14 (including outside Australia), that regulates cooperatives or 15 organisations having attributes the same as or similar to cooperatives 16 but does not include-- 17 (a) a body incorporated under the Corporations Law; or 18 (b) a financial institution. 19 "function" includes a power. 20 "inspector" means a person appointed as an inspector under part 15.204 21 "interest" for part 4, division 3 see section 77.205 22 200 Section 345 (Definitions) 201 Schedule 3, section 1 (Interpretation) 202 Section 231 (Meaning of "entity" and "control") 203 Section 345 (Definitions) 204 Part 15 (Supervision and protection of cooperatives) 205 Section 77 (Meaning of "interest")

 


 

366 Cooperatives SCHEDULE 8 (continued) "investigator" for part 15, division 2 see section 408.206 1 "involved person" for part 15, division 2 see section 408.207 2 "managing controller" for schedule 4 see section 1 of that schedule.208 3 "marketable security" for schedule 3, part 1 see section 1 of that 4 schedule.209 5 "member" for part 4, division 4 see section 82.210 6 "model rules" means model rules approved by regulation under part 5.211 7 "mortgage" includes lien, charge or other security over property. 8 "national newspaper" for schedule 4 see section 1 of that schedule.212 9 "non-participating cooperative" for part 14 see section 357.213 10 "non-trading cooperative" means a non-trading cooperative under 11 section 15.214 12 "new body" for part 12, division 2 see section 299.215 13 "officer", of a cooperative, other than for part 9, division 2 and schedule 3 14 and 4 means-- 15 (a) a director, secretary or employee of the cooperative; or 16 (b) a person who is concerned, or takes part, in the management of 17 the cooperative, whether or not as a director; or 18 206 Section 408 (Definitions for division) 207 Section 408 (Definitions for division) 208 Schedule 4, section 1 (Interpretation) 209 Schedule 3, section 1 (Interpretation) 210 Section 82 (Grievance procedure) 211 Part 5 (Rules) 212 Schedule 4, section 1 (Interpretation) 213 Section 357 (Definitions for part) 214 Section 15 (Non-trading cooperatives) 215 Section 299 (Meaning of "new body" and "transfer")

 


 

367 Cooperatives SCHEDULE 8 (continued) (c) a receiver and manager, appointed under a power contained in an 1 instrument, of property of the cooperative; or 2 (d) an administrator of a deed of arrangement executed by the 3 cooperative; or 4 (e) a liquidator or provisional liquidator appointed in a voluntary 5 winding-up of the cooperative; or 6 (f) an administrator of the cooperative appointed under-- 7 (i) the Corporations Law, part 5.3A as adopted and applying 8 under this Act; or 9 (ii) part 12, division 5;216 or 10 (g) a trustee or other person administering a compromise or 11 arrangement made between the cooperative and another person. 12 "officer" means-- 13 (a) for part 9, division 2 see section 214;217 or 14 (b) for schedule 3, part 2, division 5 see section 32 of that 15 schedule;218 or 16 (c) for schedule 4 see section 1 of that schedule.219 17 "participating cooperative" for part 14 see section 357.220 18 "participating State" for part 14 see section 357.221 19 "place" for part 15 see section 380.222 20 216 Part 12, division 5 (Appointment of administrator) 217 Section 214 (Meaning of "officer") 218 Schedule 3, section 32 (Definitions) 219 Schedule 4, section 1 (Interpretation) 220 Section 357 (Definitions for part) 221 Section 357 (Definitions for part) 222 Section 380 (Definitions for part)

 


 

368 Cooperatives SCHEDULE 8 (continued) "present liability" for schedule 3, part 1 see section 1 of that schedule.223 1 "primary activity" see section 113.224 2 "principal executive officer", of a cooperative or a subsidiary of a 3 cooperative, means the principal executive officer of the cooperative or 4 subsidiary for the time being, by whatever name called, and whether or 5 not the officer is a director or the secretary. 6 "priority time" for schedule 3, part 3, division 1 see section 45 of that 7 schedule.225 8 "prior registered charge" for schedule 3, part 3, division 1 see section 45 9 of that schedule.226 10 "property" means-- 11 (a) for schedule 3, part 1 see section 1 of that schedule.227 12 (b) for schedule 4 see section 1 of that schedule.228 13 "prospective liability" for schedule 3, part 1 see section 1 of that 14 schedule.229 15 "receiver" means-- 16 (a) for schedule 3, part 2, division 5 see section 32 of that 17 schedule.230 18 (b) for schedule 4 see section 1 of that schedule.231 19 "records" includes books, accounts, accounting records, minutes, registers, 20 223 Schedule 3, section 1 (Interpretation) 224 Section 113 (Meaning of "primary activity") 225 Schedule 3, section 45 (Definitions) 226 Schedule 3, section 45 (Definitions) 227 Schedule 3, section 1 (Interpretation) 228 Schedule 4, section 1 (Interpretation) 229 Schedule 3, section 1 (Interpretation) 230 Schedule 3, section 32 (Definitions) 231 Schedule 4, section 1 (Interpretation)

 


 

369 Cooperatives SCHEDULE 8 (continued) deeds, writings, documents and other sources of information 1 compiled, recorded or stored in written form or on microfilm, or by 2 electronic process, or in another way. 3 "register" means-- 4 (a) for a cooperative--the register under section 437232 as it relates to 5 cooperatives; or 6 (b) for a foreign cooperative--the register under section 437 as it 7 relates to foreign cooperatives; or 8 (c) for a cooperative charge--the register under section 437 as it 9 relates to cooperative charges under schedule 3, section 18.233 10 "registered charge" for schedule 3, part 3, division 1 see section 45 of that 11 schedule.234 12 "registrable charge" for schedule 3, part 1 see section 1 of that 13 schedule.235 14 "registrar" see section 433.236 15 "related" (in the context of related corporations) see schedule 2, part 3.237 16 "relevant day" for schedule 3, part 2, division 4 see section 26 of that 17 schedule.238 18 "relevant documents" for part 15 see section 380.239 19 "relevant interest" see schedule 2, part 1.240 20 232 Section 437 (Register of cooperatives) 233 Schedule 3, section 18 (Register of cooperative charges) 234 Schedule 3, section 45 (Definitions) 235 Schedule 3, section 1 (Interpretation) 236 Section 433 (Appointment of registrar) 237 Schedule 2, part 3 (Related bodies) 238 Schedule 3, section 26 (Definitions) 239 Section 380 (Definitions for part) 240 Schedule 2, part 1 (Relevant interests)

 


 

370 Cooperatives SCHEDULE 8 (continued) "relevant person" for schedule 3, part 2, division 5 see section 32 of that 1 schedule.241 2 "repealed Acts" for schedule 5 see section 1 of that schedule.242 3 "rule" means registered rule of a cooperative for the time being in force. 4 "seal", of a cooperative, means common seal or official seal. 5 "share" means share in the share capital of a cooperative. 6 "subordinated debt" see section 255.243 7 "subsequent registered charge" for schedule 3, part 3, division 1 see 8 section 45 of that schedule.244 9 "subsidiary" see the Corporations Law. 10 "surplus", in relation to a cooperative, means the excess of income over 11 expenditure after making adequate allowance for taxation expense, 12 depreciation in value of the property of the cooperative and for future 13 contingencies. 14 "trading cooperative" means a trading cooperative under section 14.245 15 "transfer" for part 12, division 2 see section 299.246 16 241 Schedule 3, section 32 (Definitions) 242 Schedule 5, section 1 (Definitions) 243 Section 255 (Subordinated debt) 244 Schedule 3, section 45 (Definitions) 245 Section 14 (Trading cooperatives) 246 Section 299 (Meaning of "new body" and "transfer")

 


 

371 Cooperatives SCHEDULE 8 (continued) "transferred cooperative" for schedule 5 see section 1 of that schedule.247 1 "unregistered charge" for schedule 3, part 3, division 1 see section 45 of 2 that schedule.248 3 State of Queensland 1997 247 Schedule 5, section 1 (Definitions) 248 Schedule 3, section 45 (Definitions)

 


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