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Version No. 092

Co-operative Housing Societies Act 1958

No. 6226 of 1958

Version incorporating amendments as at 1 January 2010

TABLE OF PROVISIONS

Section Page1 Short title and commencement 62 Repeal Schedule 63 Definitions 73A Construction of references to Commission 15

PART IGENERAL 16

4 Formation and registration of co-operative housing societies 164A Societies excluded from Corporations legislation 165 Objects of society 176 Power of society to raise money on loan 18

PART IIINCORPORATION OF SOCIETIES 19

Division 1Registration, &c. 19

7 Liability and membership 198 Formation and registration of society 209 As to names of societies 2210 Certificate of incorporation as evidence 24

Division 2Mergers and transfers of engagements 24

11 Application for merger or transfer of engagements betweensocieties 25

12 Registrar may register merged society 2713 Certificate confirming transfer of engagements between

societies 2814 Registrar may direct a transfer of engagements between

societies 2915 Society to comply with direction 3016 Day on which transfer of engagements takes effect 3017 Effect of merger 3118 Effect of transfer of engagements 3218A References to documents 321923 Repealed 32

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Division 3Members and Funds 33

24 Members of societies 3325 Capital and shares 3526 Liability of members 3627 Cancellation of shares 3928 Society's charge on shares 3929 Payment of sum due on unadvanced shares without probate 40

Division 4Privileges, powers, and duties 41

30 Society to be a body corporate 4131 Exemption from fees 41

32 Acquisition of property 4133 Raising loans 4133A Society may act as trustee or agent 4634 As to advances by societies 4635 Contracts by society 4936 As to name and address of society 4937 Service of documents on society 5038 Effect of rules 5039 Registers and accounts 5040 Inspection of registers etc. 5141 Returns 5142 Charges 5243 No voting by proxy 53

44 Special resolution 53

Division 5Quarterly returns and reports 54

44A Quarterly returns by society 5444B Auditor to submit report 55

Division 6Directions of Registrar 56

44C Intervention by the Registrar 56

Division 7Supervision levy 58

44CA Industry Supervision Fund 5844D Supervision levy 58

PART IIIRULES, MANAGEMENT, &c. 61

Division 1Rules 61

45 Model rules 6146 Rules of a society 6147 Alteration of rules 64

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Division 2Management 65

48 Board of directors 6549 Appointment of director by Treasurer in certain cases 6849A Appointment of administrator 6950 Annual meeting 7351 Voting by members 7352 Minutes 7453 Officers 7454 Certain dealings by directors prohibited 74

55 Dismissal of director after inquiry in certain cases 7556 Audit 7757 Financial year 78

Division 3Valuations 79

58 Valuations of property to be made by sworn valuators 79

Division 4Winding up, &c. 80

59 Winding up voluntarily or by court 8060 Liability of members and past members in winding up 8561 Repealed 82

PART IVADMINISTRATION 87

Division 1Registry 87

62 Employment of Registrar 8762A Registrar's functions 8762B Delegation by Registrar 8763 Documents to be kept in office of registrar 8864 Payments to be made for giving of information 8865 Power to registrar to require evidence 8866 Inspection of books 8867 Special general meeting or inquiry 8968 Inquiry by registrar or inspector 9069 Powers of registrar or inspector upon inquiry 9170 Public office of Registrar and inspection of documents 91

70A Power of Registrar to reject documents etc. 9271 Repealed 93

Division 1AExaminers 93

71A Appointment of examiners 9371B Powers of examiners 9371C Offences in relation to examiners 95

Division 2Co-operative Housing Societies Advisory Committee 95

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72 The Committee 9672A Functions of Committee 98

Division 3General 98

72B Secrecy 98

PART IVARepealed 98

PART VGOVERNMENT GUARANTEES AND INDEMNITIES

103

Division 1Guarantees 103

73 Treasurer's guarantees 10374 Provisions relating to guarantees 10475 Aggregate liability under guarantees 10575A Execution of guarantees and entering into of agreements 106

Division 2Indemnities 107

76 Treasurer's indemnity against loss 10777 Aggregate liability under indemnities 10877A Entering into of agreements 109

PART VIMISCELLANEOUS 110

Division 1Evidence 110

78 Certificates 11079 Rules 11080 Registers 11081 Minutes 11182 Entries in books 11183 Saving 111

Division 2Offences 111

84 Failure to display name, keep rules, give returns orinformation 111

85 Acting as director after office vacated 11286 Carrying on unlawful business 113

87 Carrying on business with too few members 11388 Using wrong name 11389 Improper sealing 11490 Taking money before registration 11491 False copies of rules 11492 False entries 11593 Imposition and misapplication of moneys 11594 Improper commissions 11595 General penalties 116

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96 Recovery of fines, penalties 11697 Civil remedies in case of contravention 116

Division 3Regulations 117

98 Regulations 117__________________

SCHEDULERepeal 118

ENDNOTES 119

1. General Information 119

2. Table of Amendments 120

3. Explanatory Details 129

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Version No. 092

Co-operative Housing Societies Act 1958

No. 6226 of 1958

Version incorporating amendments as at 1 January 2010

An Act to consolidate the Law relating to the FormationRegistration and Management of Co-operative Housing

Societies and the Making by the Treasurer of Victoria of CertainGuarantees and Indemnities in connexion with such Societies,and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty by

and with the advice and consent of the Legislative Council

and the Legislative Assembly of Victoria in this present

Parliament assembled and by the authority of the same as

follows (that is to say):

1 Short title and commencement

This Act may be cited as the Co-operativeHousing Societies Act 1958, and shall come intooperation on a day to be fixed by proclamation ofthe Governor in Council published in theGovernment Gazette.

2 Repeal Schedule

(1) The Act mentioned in the Schedule to the extentthereby expressed to be repealed is herebyrepealed accordingly.

(2) Except as in this Act expressly or by necessaryimplication provided

(a) all persons things and circumstancesappointed or created by or under the repealedAct or existing or continuing under such Actimmediately before the commencement ofthis Act shall under and subject to this Act

S. 1amended byNos 8206s. 14(2), 9776s. 2(a), 10020s. 3(1), 10254s. 43(d),36/1990s. 19(a).

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continue to have the same status operationand effect as they respectively would havehad if such Act had not been so repealed;

(b) in particular and without affecting thegenerality of the foregoing paragraph suchrepeal shall not disturb the continuity ofstatus operation or effect of any ruleregulation report notice requirement orderfee application registration alteration of rules

amalgamation statement election certificatetransfer charge acquisition loan advancemortgage agreement return securityvaluation recommendation guaranteeindemnity proceeding penalty liability orright made issued given paid accruedincurred or acquired or existing orcontinuing by or under such repealed Actbefore the commencement of this Act, norshall such repeal affect the operation oreffect of subsection (3) or subsection (4) of

section two or of subsection (2) of sectionfour of the Co-operative Housing SocietiesAct 1949, or of subsection (8) of sectioneighty-three of the Co-operation Act 1953.

3 Definitions

(1) In this Act unless inconsistent with the context orsubject-matter

authorised deposit-taking institution has the samemeaning as in the Banking Act 1959 of the

Commonwealth;

boardmeans the board of directors of a society;

* * * * *

o. 6138 s. 3.

. 3

3(1) def. ofuthorisedeposit-king

stitutionserted byo. 11/20013(Sch.m 15.1).

3(1) def. ofommissionserted byo. 48/199294(1),pealed byo. 37/199958(Sch. 2

1 itema)). 7

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co-operative housing society means a society ofpersons

(a) which is formed for all or any of the

objects referred to in section five of thisAct;

(b) which has under its rules a share capitaldivided into equal shares of one ormore classes and not being preferentialshares; and

(c) which under its rules is to terminate ona specified date or when a specifiedobject is attained or a specified eventoccurs

but does not include a Starr-Bowkett society,that is to say, a society in which the order ofadvances to members is determined eithersolely or partly by the drawing of lots;

* * * * *

domestic partnerof a personmeans

(a) a person who is in a registeredrelationship with the person; or

(b) an adult person to whom the person isnot married but with whom the person

S. 3(1) def. ofco-operativehousingsocietyamended byNo. 8786

s. 2(a).

s. 3

S. 3(1) def. ofCouncilinserted byNo. 36/1990s. 12,repealed byNo. 48/1992s. 104(a).

S. 3(1)def. ofdomesticpartnerinserted byNo. 27/2001s. 8(Sch. 6item 1.1.),substituted by No. 12/2008s. 73(1)(Sch.1 item 10.1).

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is in a relationship as a couple whereone or each of them provides personalor financial commitment and support ofa domestic nature for the materialbenefit of the other, irrespective of theirgenders and whether or not they areliving under the same roof, but does notinclude a person who providesdomestic support and personal care tothe person

(i) for fee or reward; or

(ii) on behalf of another person or anorganisation (including agovernment or governmentagency, a body corporate or acharitable or benevolentorganisation);

officer, in relation to a society, includes director,secretary, or other person empowered under

the rules to act or give directions in regard tothe business of the society;

Partmeans Part of this Act;

preferential shares includes any shares or classesof shares in a society (by whatever namethey may be described) entitled

(a) to a fixed rate of dividend;

(b) to any other right to participate in theprofits or assets of the society; or

(c) to any other rights whatsoever

in preference to any other shares or class ofshares in that society or to any of the rightsattaching thereto or which entitle the holdersto any other preference whatsoever in respectof the payment of dividends, interest, rebates

. 3

3(1) def. ofeferentialharesserted byo. 87862(b).

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(b) any reference to the ownership of land orfreehold property or to the owner thereofshall be deemed to include a reference to theright to occupy such a residence area or(as the case may be) to the holder of such aright;

(c) any reference to a mortgage of land orfreehold property shall be deemed to includea reference to an encumbrance, by way of

security, of the right to occupy such aresidence area; and

(d) any reference to the registration of amortgage of land or freehold property shallbe deemed to include a reference to theregistration, pursuant to regulations madeunder the said Act, of an encumbrance of theright to occupy such a residence area:

Provided that, in the making of a valuation of aresidence area for any of the purposes of this Act,

regard shall be had(i) to the limited nature of the tenure of such

residence area as provided in the said Act;

(ii) to the restrictions imposed by or under thesaid Act upon the occupation and userthereof; and

(iii) to the fact that under the said Act the holderof the right to occupy such area may becomethe owner in fee simple of the land

comprised therein only upon compliancewith the conditions provided in the said Actincluding the payment of a purchase price ofsuch land to be determined by the Ministeradministering Division 11 of Part 1 of theLand Act 1958.

(3) In this Act

(a) any reference to land or freehold property

3(2)oviso

mended by

o. 29/20063(Sch. 1m 6.1).

. 3

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shall be deemed to include a reference to alicence to occupy land for residencepurposes granted pursuant to section onehundred and thirty-eight of the Land Act1958;

(b) any reference to the ownership of land orfreehold property or to the owner thereofshall be deemed to include a reference to theright granted by such a licence or (as the case

may be) the holder of such a licence;(c) any reference to a mortgage of land or

freehold property shall be deemed to includea reference to a lien, by way of security, onthe improvements upon any land in respectof which such a licence is in force; and

(d) any reference to the registration of amortgage of land or freehold property shallbe deemed to include a reference to theregistration, pursuant to regulations made

under the said Act, of a lien onimprovements as referred to in paragraph (c)of this subsection:

Provided that in the making of a valuation of sucha licence as aforesaid for any of the purposes ofthis Act, regard shall be had

(i) to the limited nature of the right granted bysuch licence as provided in the said Act;

(ii) to any restrictions imposed by or under the

said Act upon the occupation and user of theland to which the licence relates; and

(iii) to the fact that under the said Act the holderof the licence may purchase the land towhich the licence relates only in accordancewith the provisions of the said Act and at aprice to be determined by the Ministeradministering section 138 of the Land Act

s. 3

S. 3(3)Provisoamended byNo. 29/2006s. 3(Sch. 1item 6.2).

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1958.

(4) In this Act and in any regulation made thereunder(whether before or after the commencement ofthis Act) and in the rules of every society (whetherregistered before or after the said commencement)any reference, however expressed, to the erectionof a dwelling-house on any land shall be deemedto include and always to have included a referenceto

(a) the constructing forming levelling drainingpaving flagging macadamizing or otherwisemaking good of any portion or portions ofthe streets or roads abutting upon the landupon which the dwelling-house is or will beerected;

(b) the curbing flagging paving or asphalting ofany portion or portions of the footways orpathways abutting upon any such land;

(c) the supplying installing and connecting ofsewerage fittings and connexions to thedwelling-house;

(d) the provision of drainage for the land(whether or not wholly upon the land);

(e) the completing of the erection of thedwelling-house notwithstanding that thefoundations footings framework or otherportions thereof had already beenconstructed or commenced; and

(f) the adding of one or more rooms out-buildings or other permanent improvementsto a dwelling-house in respect of which anadvance had previously been made by thesociety in question

and any reference, however expressed, in this Act

. 3

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or in any rules registered or regulations madethereunder after the commencement of theCo-operative Housing Societies Act 1948 to themaking of an advance for the purchase of any landon which a dwelling-house is situated shall bedeemed to include a reference to the making of anadvance or any part of an advance for the carryingout of all or any of the acts matters and thingsreferred to in paragraphs (a) to (f) of thissubsection in relation to the land and housepurchased.

(5) In this Act

(a) any reference to the purchase of land onwhich is situated a dwelling-house shall,without limiting the generality of that

expression, include a reference to thepurchase of a stratum estate within themeaning of the Transfer of Land Act 1958or a lot on a registered plan of subdivisionwithin the meaning of the Subdivision Act1988, being a residential flat (hereinaftercalled a stratum estate);

(b) any reference to the making of advancesupon the security of freehold property shallinclude a reference to the making of an

advance upon the security of a mortgage of astratum estate.

(6) For thepurposes of the definition ofdomesticpartnerin section3(1)

(a) registered relationship has the samemeaning as in the Relationships Act 2008;and

S. 3(5)inserted byNo. 6457 s. 2(as amendedby No. 6489s. 4(Sch.item 18(b)).

s. 3

S. 3(5)(a)substituted byNo. 7551s. 47,amended by

No. 53/1988s. 45(Sch. 3item 6) (asamended byNo. 47/1989s. 23(2)).

S. 3(5)(b)amended byNo. 7097s. 2(a).

S. 3(6)inserted byNo. 6457 s. 2,repealed byNo. 7097s. 2(b), news. 3(6)inserted byNo. 27/2001s. 8(Sch. 6item 1.2),substituted by No. 12/2008

s. 73(1)(Sch.1 item 10.2).14

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PART IGENERAL

4 Formation and registration of co-operative housing

societies

(1) No co-operative housing society shall carry onbusiness unless it is formed and registered underthis Act.

* * * * *

* * * * *

4A Societies excluded from Corporations legislation

The following matters are declared to be excludedmatters for the purposes of section 5F of theCorporations Act in relation to the whole of theCorporations legislation

(a) a co-operative housing society;

(b) securities of a co-operative housing society.

Note

This section ensures that neither the Corporations Act norPart 3 of the ASIC Act will apply in relation to a co-operative housing society or securities of a co-operativehousing society. Section 5F of the Corporations Actprovides that if a State law declares a matter to be anexcluded matter in relation to the whole of the Corporations

No. 6138 s. 4.

s. 4

S. 4(2)amended by

Nos 6455s. 2(Sch. 1Pt 3(e)), 6839s. 4(Sch. 1Pt 3(e)), 9699s. 23, 48/1992s. 95(a),repealed byNo. 44/2001s. 3(Sch.item 19.1).

S. 4(3)inserted byNo. 9699

s. 22,repealed byNo. 44/2001s. 3(Sch.item 19.1).

S. 4Ainserted byNo. 44/2001s. 3(Sch.item 19.2).

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legislation, then that legislation will not apply in relation tothat matter in the State concerned. However, otherprovisions of this Act apply certain provisions of theCorporations legislation to co-operative housing societies aslaws of this State.

5 Objects of society

(1) A co-operative housing society may be formed forall or any of the following objects

(a) to enable each of its members

(i) to purchase land and to erect adwelling-house thereon; or

(ii) to erect a dwelling-house on landalready owned by him; or

(iia) to erect a dwelling-house on Crownland leased by him for a term of notless than 50 years being Crown landwithin an area approved by theGovernor in Council for the purposes ofthis Act;

(iii) subject to section thirty-four of this Actto purchase land upon which is situateda dwelling-house; or

(iiia) to maintain and keep in proper repairhis dwelling-house; or

(iv) where the approval of the Governorin Council given after consideration ofa report by the registrar is first obtainedto discharge a mortgage held byanother society upon any land; or

o. 6138 s. 5.

. 5

5(1)(a)(iia)serted byo. 89782(1).

5(1)(a)(iii)ubstituted byo. 70973(a),

mended byo. 73322(Sch. 1m 14).

5(1)(a)(iiia)serted byo. 68213(b),

mended byo. 73322(Sch. 1m 15).

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(v) to discharge a mortgage or any othercharge or security over or affecting anyland which mortgage charge or securitywas granted or executed by the memberin question in anticipation of thesociety's making an advance to him andwith the approval of the registrar to themaking of the advance; and

(b) for all or any of those purposes to make

advances to its members upon the security offreehold property or a lease for a term of notless than 50 years of Crown land within anarea approved by the Governor in Councilfor the purposes of this Act.

(2) In this section purchase includes the completionof a purchase under an existing contract of saleand the discharge of a mortgage within themeaning of the Sale of Land Act 1962, given to avendor or other person pursuant to the provisions

of section four of that Act.6 Power of society to raise money on loan

(1) A society may, subject to this Act and its rules,raise money on loan or in accordance with section33(1A) for the objects of the society.

(2) Subsection (1) does not apply to section 33(1B),(1C) or (1D).

_______________

S. 5(1)(a)(v)amended byNo. 7097s. 3(b).

S. 5(1)(b)amended by

No. 8978s. 2(2).

S. 5(2)amended byNo. 7097s. 3(c).

No. 6138 s. 6.

S. 6amended byNos 36/1990s. 14(1),37/1999s. 58(Sch. 2Pt 2 item 1)(ILAs. 39B(1)).

s. 6

S. 6(2)inserted byNo. 37/1999

s. 58(Sch. 2Pt 2 item 1).

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PART IIINCORPORATION OF SOCIETIES

Division 1Registration, &c.

7 Liability and membership

(1) A society shall be formed with limited liability.

(2) Unless otherwise provided by the rules, anyperson who is not under the age of sixteen yearsshall subject to this Act be eligible to be a memberof a society.

(3) A member of a society shall not at any time beentitled on any ground relating to his minority orformer minority to avoid any of his obligations orliabilities as a member of the society or under anymortgage given by him to the society.

(4) No person shall at any one time be a member ofmore than one society unless

(a) before becoming a member of each society(other than the one of which he is first amember) he obtains the consent in writing ofthe registrar; and

(b) all societies of which he is a member havethe same registered office:

Provided that in the case of a person who waslawfully a member of two societies before thecommencement of the Co-operative HousingSocieties Act 1950 nothing in this subsection shall

be deemed(a) to require any consent of the registrar to his

membership of either such society; or

(b) to render his membership of either such

o. 6138 s. 7.

7mended byo. 6909 s. 2.

. 7

7(3)ubstituted byo. 90755(2).

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society unlawful:

Provided further that nothing in this subsectionshall apply to or in respect of any personbecoming or being registered as the holder ofshares in any society as executor or administratorof a deceased member or as the trustee within themeaning of the Commonwealth Act known as theBankruptcy Act 1966 as amended from time totime of the estate of a member or deceased

member.8 Formation and registration of society

(1) A society may be formed by any five or morepersons who are not under the age of eighteenyears and who are eligible under this Act and therules as later approved and registered to bemembers of the society.

(2) No society shall be registered unless there hasbeen a meeting at which there have been presentfive or more such persons.

(3) At the meeting there shall be presented

(a) a written statement showing the objects ofthe society and the reasons for believing that,when registered, it will be able to carry outits objects successfully; and

(b) a copy of the rules which it is proposed totender for registration.

* * * * *

(5) If at the same or any subsequent or adjourned

S. 7(4)FurtherProvisoamended byNo. 8298 s. 2.

No. 6138 s. 8.

S. 8(1)amended byNos 6821s. 4(a), 9075s. 5(2),36/1990s. 13(a).

s. 8

S. 8(2)amended byNos 6821s. 4(a),

36/1990s. 13(a).

S. 8(3)amended byNo. 6821s. 4(b).

S. 8(4)repealed byNo. 6821s. 4(c).

S. 8(5)amended byNos 6821s. 4(d),36/1990s. 13(a).

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meeting, after consideration of the statement andrules, five or more such persons as aforesaidapprove the rules with or without amendment andsign an application for membership, they shallproceed to elect the first directors of the society inaccordance with the rules as so approved.

(6) Within two months after the election of directorsan application shall be made in the prescribedmanner to the registrar for the registration of the

society and shall be accompanied by(a) a statutory declaration or statutory

declarations by the persons who acted aschairman and secretary of the meeting as tocompliance with the requirements of thissection;

(b) a copy of the statement presented to themeeting;

(c) two copies of the proposed rules signed bynot less than five applicants for membership,each of whose signatures shall be attested bya witness;

(d) a list containing the full name and theoccupation and address of each director;

(e) a list containing the full name and theoccupation and address of each applicant formembership and the number of sharessubscribed for by him; and

(f) such other particulars as are prescribed by

regulation:Provided that where before the expiration of thesaid period of two months a request in writing forthe extension of that period is lodged with theregistrar and the registrar is satisfied thatcircumstances beyond the control of the societyhave precluded and will preclude the making ofthe application for registration within the said

. 8

8(6)(c)mended byos 68214(e),/199013(a).

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period of two months, the registrar may if hethinks fit by writing extend the period for themaking of the application by such further period(not exceeding one month) as he thinks proper,and in any such case the making of the applicationwithin such further period shall be deemed andtaken to be in compliance with the provisions ofthis Act.

(7) The statutory declaration or statutory declarations

mentioned in subsection (6) of this section may beaccepted by the registrar as sufficient evidence ofcompliance with the requirements of this section.

(8) If the registrar is satisfied that the society hascomplied with the provisions of this Act and theregulations, that the proposed rules of the societyare not contrary to this Act or to the regulationsand are suitable and sufficient for the purposes ofthe society, and that there are reasonable groundsfor believing that the society will be able to carry

out its objects successfully, the registrar mayregister the society and its rules and issue acertificate in the prescribed form to the effect thatthe society is incorporated under this Act.

(9) The expenses of and incidental to the formation ofthe society may be paid either out of capital or outof income.

9 As to names of societies

S. 8(8)amended byNos 8339s. 2(1)(Sch. 2item 2(i)),36/1990s. 13(b).

s. 8

No. 6138 s. 9.

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(1) A society may not be registered by a nameidentical with that by which a society is alreadyregistered, or so nearly resembling that name orthe name of any body corporate registered underthe Corporations Act as in the opinion of theRegistrar is calculated to deceive.

(2) If a society through inadvertence or otherwise isregistered by a name identical with that by which

a society is already registered, or so nearlyresembling that name or the name of any bodycorporate registered under the Corporations Act asin the opinion of the registrar to be calculated todeceive, the society shall, if the registrar sodirects, change its name.

(3) A society may change its name by specialresolution if the new name is not identical withthat of any society previously registered and stillsubsisting or so nearly resembling that name orthe name of any body corporate registered underthe Corporations Act as in the opinion of theRegistrar is calculated to deceive unless thesociety or body corporate is in course of beingwound up and consents in writing to theregistration.

(4) Notice in writing of any change of name, togetherwith the certificate of incorporation, shall be sent

9(1)mended byos 64552(Sch. 13(e)), 68394(Sch. 13(e)),9/1986142(Sch. 2m 3) (as

mended byo. 36/1990

23(c)),/199295(b),

ubstituted byo. 37/199958(Sch. 21 item 3),

mended byo. 44/20013(Sch.m 19.3).

. 9

9(2)mended byos 37/199958(Sch. 2

1 item 4),/20013(Sch.m 19.3).

9(3)ubstituted byo. 37/199958(Sch. 21 item 5),

mended byo. 44/2001

3(Sch.m 19.3).

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to the registrar within such time after the passingof the special resolution as is prescribed.

(5) The registrar shall register the change of name,and shall either note the change on the certificateof incorporation or issue a new certificate ofincorporation in lieu thereof in the prescribedform.

(6) The change of name shall be advertised asprescribed.

(7) The change of name shall not affect the identity ofthe society or any right or obligation of the societyor of any member or other person, or renderdefective any legal proceedings by or against thesociety.

(8) Any legal proceedings that might have beencontinued or commenced against the society by itsformer name may be continued or commencedagainst it by its new name.

10 Certificate of incorporation as evidence

A certificate of incorporation under this Act shallbe conclusive evidence that all the requirements ofthis Act in respect of registration and mattersprecedent or incidental thereto have beencomplied with:

Provided that nothing in this section shall affectany provision of this Act relating to the windingup or dissolution of the society or the cancellationof its registration.

Division 2Mergers and transfers of engagements

No. 6138 s. 10.

s. 10

No. 6138ss 1123.

Pt 2 Div. 2(Heading andss 1123)amended byNo. 8786 s. 3,substituted asPt 2 Div. 2

(Heading andss 1118) byNo. 48/1992s. 96.

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11 Application for merger or transfer of engagements

between societies

(1) If 2 or more societies propose to consolidate all orany of their assets, liabilities and undertakings byway of merger, or transfer of engagements, thesocieties may, after complying with this section,apply for the registration of the merger, or transferof engagements.

(2) The proposed merger, or transfer of engagements,must have been approved by a special resolutionof each society involved unless the Registrar hasdetermined that it may be approved by the

society's board.(3) A society that is to approve the proposed merger,

or transfer of engagements, by special resolutionmust send to each of its members a statementapproved by the Registrar specifying

(a) the financial position of each of the societiesas shown in financial statements that havebeen prepared as at a date that is not morethan 6 months before the date of thestatement; and

(b) any interest that any officer of any of thesocieties has in the proposed merger, ortransfer of engagements; and

(c) any compensation or other considerationproposed to be paid, or any other incentiveproposed to be given, to any officer ormember of a society in relation to the

11ubstituted byo. 48/199296.

. 11

11(2)mended byo. 37/199958(Sch. 21 item 6).


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proposed merger, or transfer ofengagements; and

(d) whether the proposal is a merger, or transferof engagements and the reason for themerger, or transfer of engagements; and

(e) the effect of the merger or transfer ofengagements on entitlements and liabilitiesof members; and

(f) in the case of a merger(i) subject to section 9, the proposed name

of the merged society;

(ii) the proposed address of the office ofthe merged society;

(iii) the proposals for the management andcontrol of the business and operationsof the merged society, pending electionof a board of directors;

(iv) the proposed rules of the mergedsociety;

(g) any other matter specified by the Registrar.

(4) The statement mentioned in subsection (3) mustbe sent to the members of the society so that itwill, in the ordinary course of post, reach eachmember who is entitled to vote on the special

resolution not less than 21 days before the date ofthe meeting at which the resolution is to bedecided.

(5) The Registrar may exempt a society from havingto comply with subsection (3).

s. 11

S. 11(3)(g)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 6).

S. 11(5)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 6).

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(6) The Registrar may grant an exemption, or approvea statement, subject to any conditions it considersappropriate.

(7) An application for the registration of a merger ortransfer of engagements under this Division mustbe made in the way and form required by theRegistrar.

(8) An application for a proposed merger must beaccompanied by 2 copies of the proposed rules ofthe merged society and any other particularsrequired by the Registrar.

12 Registrar may register merged society

(1) If, in relation to an application under this Divisionby societies for registration of a proposed merger,

the Registrar is satisfied that(a) the societies involved have complied with

section 11; and

(b) the proposed rules of the merged society areadequate; and

(c) each authorised deposit-taking institution orother person (if any) in whose favour aguarantee under Part V is in force in relationto the societies consents to the merger;

(d) the certificates of incorporation of thesocieties involved in the merger have beensurrendered to the Registrar; and

(e) there is no good reason why the mergedsociety and its rules should not be registered

the Registrar must





. 12


12(1)(c)mended byo. 11/20013(Sch.m 15.2).

12(1)(d)mended byo. 37/199958(Sch. 21 item 6).

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(f) register the merged society; and

(g) register its rules; and

(h) cancel the registration of the societiesinvolved in the merger.

(2) On registering the merged society, the Registrarmust issue a certificate of incorporation to thesociety.

(3) A merger takes effect on the issue of thecertificate of incorporation under subsection (2).

13 Certificate confirming transfer of engagements

between societies

(1) If, in relation to an application under this Divisionby societies for registration of a proposed transferof engagements, the Registrar is satisfied that

(a) the societies involved have complied withsection 11; and

(b) the rules, or proposed rules, of the transfereesociety are adequate; and

(c) the certificate or certificates of incorporationof the transferor society or societies has orhave been surrendered to the Registrar; and

(d) each authorised deposit-taking institution or

other person (if any) in whose favour aguarantee under Part V is in force in relationto the societies consents to the transfer;

(e) there is no good reason why the transfer ofengagements should not take effect;

the Registrar must

(f) issue a certificate confirming the transfer of


S. 13substituted byNo. 48/1992s. 96.

s. 13


S. 13(1)(c)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 6).

S. 13(1)(d)amended by

No. 11/2001s. 3(Sch.item 15.2).

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position; or

(iii) the affairs of the society are beingconducted in an improper or financiallyunsound way; or

(b) after making such inquiries in relation to oneor both of the societies as the Registrarconsiders appropriate, the Registrar issatisfied that it is in the interest of membersor creditors of the society that is to bedirected to transfer its engagements; or

(c) the Registrar has certified, in relation to thesociety, that any of the events mentioned insection 49A(17)(a), (b), (c), (d) or (f) hashappened.

15 Society to comply with direction

(1) A society must take all reasonable steps to complywith a direction under this Division to transfer itsengagements.

P 200 penalty units.

(2) An officer of a society must not

(a) fail to take all reasonable steps to securecompliance by the society with a direction totransfer its engagements; or

(b) by a wilful act or omission, be the cause of afailure by the society to comply with adirection to transfer its engagements.

P 200 penalty units.

16 Day on which transfer of engagements takes effect

S. 14(3)(b)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 6).

S. 14(3)(c)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 6).


s. 15


s. 16

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(1) The society directed to transfer its engagements,and the society the board of which has consentedto the transfer, must apply to the Registrar for acertificate confirming the transfer

(a) within the time specified in the direction; and

(b) in the way and form required by theRegistrar.

(2) Unless the Registrar is satisfied that there is goodreason for refusing the application, the Registrarmust issue a certificate confirming the transfer ofengagements.

(3) The transfer of engagements takes effect on theissue of the certificate under subsection (2).

(4) The society directed to transfer its engagementsmust surrender its certificate of incorporation tothe Registrar and the Registrar must cancel theregistration of the society.

17 Effect of merger

On a merger of societies under this Divisiontaking effect

(a) the members of the societies that are partiesto the merger become members of themerged society; and

(b) the property of the societies that are partiesto the merger vests in the merged societywithout any conveyance, transfer orassignment; and

(c) any property vested in a merged societyunder this section remains subject to anydebt, liability or obligation affecting theproperty; and


16(1)(b)mended byo. 37/199958(Sch. 21 item 6).




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(d) all debts and liabilities of the societies thatare parties to the merger, are debts andliabilities of the merged society; and

(e) in all documents (including, for example, acontract to which a society that is a party tothe merger was a party), a reference to asociety that was a party to the merger is areference to the merged society.

18 Effect of transfer of engagements

On a transfer of engagements under this Divisiontaking effect, the following provisions apply to theextent necessary to give effect to the transfer

(a) persons who were members of a transferorsociety immediately before the transfer ofengagements took effect are members of thetransferee society in accordance with itsrules;

(b) property of a transferor society that was such

immediately before the transfer took effectvests in the transferee society without anyconveyance, transfer or assignment;

(c) any property vested in a transferee societyunder this section remains subject to anydebt, liability or obligation affecting theproperty;

(d) the debts and liabilities of a transferorsociety immediately before the transfer ofengagements took effect are debts and

liabilities of the transferee society;(e) in all documents (including, for example, a

contract to which the transferor society was aparty), a reference to the transferor society isa reference to the transferee society.

18A References to documents

A reference in section 17(e) or 18(e) to a

S. 17(d)amended byNo. 61/1997s. 7.

S. 17(e)inserted byNo. 61/1997s. 7.

S. 18

substituted byNo. 48/1992s. 96.

s. 18

S. 18(e)inserted byNo. 61/1997s. 8.

S. 18Ainserted byNo. 61/1997s. 9.

s. 18A

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document includes a reference to a documentcreated or amended before the commencement ofsection 9 of the Financial InstitutionsLegislation (Amendment) Act 1997 in whichthere is a reference to a society that was a party toa merger on or after 1 July 1992 or to a transfer ofengagements on or after that date.

* * * * *

Division 3Members and Funds

24 Members of societies

(1) The members of a society which is formed underthis Act shall be the persons who sign theapplication for membership on the formation ofthe society, and any other persons who areadmitted to membership in accordance with this

Act and the rules of the society.(2) No rights of membership shall be exercised by

any member until he has made such payment tothe society in respect of membership or acquiredsuch share or interest as is provided in the rules ofthe society in that behalf.

(3) A person shall cease to be a member in any of thefollowing circumstances, that is to say

(a) where his shares are transferred to anotherperson in accordance with the rules of thesociety, and the transferee is registered asholder in his place;

s 1923pealed byo. 48/1992

96.

o. 6138 s. 24.

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(b) where his shares are forfeited in accordancewith the rules of the society;

(c) where any power of sale (whether expressedor implied) in any mortgage given by themember to the society is exercised by thesociety;

(ca) where the mortgage given by the person tothe society is assigned or transferred by thesociety (unless there is another mortgagegiven by the person);

(d) where he becomes bankrupt or insolventunder any law relating to bankruptcy orinsolvency and the official receiver orassignee disclaims in accordance with theprovisions of such law;

(e) on death:

Provided that the estate of the deceasedperson shall remain liable and his executor or

administrator shall be and may be registeredas the holder of the shares as such executoror administrator (whether eligible to be amember of the society or not) until someeligible person is registered as the holder ofthe shares by transfer from the executor oradministrator or until the shares arewithdrawn or discharged in accordance withthis Act and the rules of the society, andwhile any such executor or administrator isso registered he shall be deemed to be and

shall have the rights and obligations of amember of the society for all purposes otherthan voting at meetings of the society andbecoming a director thereof;

(f) where the contract of membership isrescinded on the ground of misrepresentationor mistake;

S. 24(3)(c)substituted byNo. 6618 s. 2.

S. 24(3)(ca)inserted byNo. 37/1999s. 58(Sch. 2

Pt 2 item 2).

s. 24

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(g) where he ceases to be a member inaccordance with the rules of the society;

(h) where the value of his shares is repaid or arefund in respect of his subscriptions is madeto him in accordance with the rules of thesociety.

(4) Where shares are held by the executor oradministrator of a deceased member, the Boardmay in its discretion by notice in writing to theexecutor or administrator call upon him to transferthe shares to an eligible person or to withdraw ordischarge the shares within six months afterreceipt of the notice or within such further time asthe Board may in any particular case allow, andunless the shares are so transferred withdrawn ordischarged they may at the discretion of thesociety be forfeited and dealt with as forfeitedshares in accordance with this Act and the rules ofthe society.

(5) Where a person becomes the trustee within themeaning of the Commonwealth Act known as theBankruptcy Act 1966 as amended from time totime of the estate of a member or deceasedmember the trustee may be registered as theholder of the shares of the member as such trustee(whether eligible to be a member of the society ornot) until some eligible person is registered as theholder of the shares by transfer from the trustee oruntil the shares are withdrawn or discharged inaccordance with the provisions of this Act and the

rules of the society and while the trustee is soregistered he shall be deemed to be and shall havethe rights and obligations of a member of thesociety for all purposes other than voting atmeetings of the society and becoming a directorthereof.

25 Capital and shares

. 24

24(5)serted byo. 8298 s. 3.

o. 6138 s. 25.

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(1) The capital of a society shall vary in amountaccording to the nominal value of shares fromtime to time subscribed.

(2) The capital shall be divided into shares of a fixedamount which shall be specified in the rules andthe shares may be shares of one or more classes asare specified in the rules; and no preferentialshares may be issued or allotted.

(3) In every society the rules shall provide that anadvance is to be made to a member only oncondition that the member subscribes for shares ofa nominal value equivalent to the amount of theadvance.

(4) Any balance unpaid in respect of shares at thetime of allotment shall be paid by periodicsubscriptions or in such manner as is specified inthe rules.

(5) No member shall hold more than such proportionof the shares in a society as is prescribed by therules.

(6) A member shall subscribe for such minimumnumber of shares as is prescribed by the rules.

(7) A share may be held by two or more personsjointly and, in such case, notices for the purposesof the society may be given to the joint holderwhose name appears first on the register of sharesin respect of the share.

(8) A share may not be sold or transferred without the

consent of the board.26 Liability of members

(1) A member shall be liable to the society for theamount, if any, unpaid on the shares held by him,together with any charges and other moneyspayable by him to the society as prescribed by thisAct or the rules of the society.

s. 25

S. 25(2)substituted byNo. 8786 s. 4.

No. 6138 s. 26.

s. 26

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or allows; and

(ii) to recover from the member anyamount in respect of which the memberhas made default as aforesaid

and any amount so recoverable shall until paid bea debt due to the society by the member and theprovisions of this Act shall apply in relationthereto accordingly. The society may make eitherby itself or in conjunction with any other societyor societies any contract or arrangement relatingto or connected with the carrying into effect ofthis subsection and may carry out any suchcontract or arrangement.

(3) Where, under or in relation to any contract orpolicy of accident or sickness insurance or similarcontract in a form approved by the registrar afterconsideration of a report thereon from theGovernment Statist, or by virtue of any legal orequitable assignment of or trust created in respect

of any such contract or policy or pursuant to anyscheme relating to accident or sickness insuranceapproved by the registrar after consideration ofsuch a report, provision is made whereby in theevent of any accident to or sickness of a memberof a society to whom the contract policy orscheme applies or in the event of any accident toor sickness of a member's spouse or domesticpartner to whom the contract policy or schemeapplies moneys will be available for or towardsthe discharge of the member's liability to the

society, then the society shall be empowered(a) to receive from any such member, at such

times as are agreed upon by the member andthe society, the amount of each periodicalpremium or contribution payable by him inrespect of the contract or policy or pursuantto the scheme; and

s. 26

S. 26(3)inserted byNo. 6618 s. 3,amended byNo. 27/2001s. 8(Sch. 6item 1.3).

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(b) to pay or otherwise deal with each suchamount in such manner as the contract policyor scheme requires or allows; and

(c) if the member defaults in payment of anysuch amount at the agreed time

(i) to make payment thereof pursuant tothe contract policy or scheme on hisbehalf or to take such other action asthe contract policy or scheme requiresor allows; and

(ii) to recover from the member anyamount in respect of which the memberhas made default as aforesaid

and any amount so recoverable shall until paid bea debt due to the society by the member and theprovisions of this Act shall apply in relationthereto accordingly. The society may make eitherby itself or in conjunction with any other societyor societies any contract or arrangement relatingto or connected with the carrying into effect ofthis subsection and may carry out any suchcontract or arrangement.

27 Cancellation of shares

A society may cancel any share purchased by orforfeited to the society in accordance with therules of the society.

28 Society's charge on shares

A society shall have a charge upon the share orinterest in the capital of a member or past memberin respect of any debt due from the member orpast member to the society, and may set off any

o. 6138 s. 27.

. 27

o. 6138 s. 28.

s. 28

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sum credited or payable to a member or pastmember in or towards payment of the debt.

29 Payment of sum due on unadvanced shares without

probate

Notwithstanding anything to the contrary in therules of any society, where a member of a societyto whom an advance has not been made dies andupon the withdrawal of his shares there is payableby the society a sum not exceeding $400, then thesociety may

(a) after the expiration of two months from thedeath of the said member if probate or lettersof administration have not been produced tothe secretary and notice in writing ofintention to apply therefor has not beenreceived by the secretary; or

(b) after the expiration of three months from thedeath of the said member if such notice ofintention to apply has been received by thesecretary within the period of two monthsfrom the death but probate or letters ofadministration have not been produced to thesecretary

pay the said sum to the person or personsappearing to the directors to be entitled theretoaccording to law as on the intestacy of thedeceased member and any such payment shall bevalid and effectual with respect to any demandagainst the society or the directors by any other

persons as the said member's next of kin legateesor personal representatives, but such next of kinlegatees or personal representatives shallnevertheless have the right to recover the whole orany portion of any such sum so paid from theperson or persons who have received the samefrom the society.

No. 6138 s. 29.

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Division 4Privileges, powers, and duties

30 Society to be a body corporate

A society shall be a body corporate by the nameunder which it is registered, with perpetualsuccession and a common seal, and shall havepower to enter into contracts, to institute anddefend actions suits and legal proceedings, and todo all things necessary for the purpose of its

constitution.31 Exemption from fees

No fee shall be chargeable for the registration of asociety or of its rules or of any alteration of itsrules.

32 Acquisition of property

(1) A society may acquire by lease purchase donationdevise bequest or otherwise any real or personalproperty for any objects of the society and may

sell or lease any such real or personal property.(2) A society may if authorized in writing by the

registrar become a member of a society registeredunder the Co-operation Act 1958 and may withthe approval of the registrar take such shares andmake any other investment in any such society asthe registrar approves.

33 Raising loans

(1) With the approval of the registrar a society mayraise money on loan in such manner as it thinksfit, and in particular, without limiting thegenerality of the foregoing, by legal or equitable

o. 613830.

. 30

o. 6138 s. 31

o. 613832.

32mended byo. 68215(a).

32(2)serted byo. 68215(b).

o. 613833.

s. 33

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mortgage charged upon the undertaking of thesociety or upon all or any part of the property andrights (both present and future) of the society,including its unpaid capital, subscriptions,payments in respect of advances and othermoneys.

(1A) With the approval of the registrar, a society mayraise money

(a) by granting a right, entitlement or interest inor in respect of; or

(b) by the transfer or assignment of

its interest under a mortgage of freehold land.

(1B) With the approval of the registrar and subject tosuch conditions as the registrar determines, asociety may assign or transfer its interest under amortgage of freehold land for the purpose of

(a) raising money for the repayment by thesociety in whole or in part of any loan madeto the society; or

(b) extinguishing the loan.

(1C) A society must, if the registrar so directs, assign ortransfer its interest under a mortgage of freeholdland for a purpose referred to in subsection (1B).

(1D) The registrar must not give a direction undersubsection (1C) unless satisfied that theassignment or transfer would not disadvantage themembers of the society.

(1E) Upon the assignment or transfer undersubsection (1B) or (1C) of a mortgage given by amember to a society

(a) the shares of the member in the societyrelated to the mortgage are cancelled; and

S. 33(1A)inserted byNo. 36/1990s. 14(2).

S. 33(1B)inserted byNo. 37/1999s. 58(Sch. 2Pt 2 item 3).

S. 33(1C)inserted byNo. 37/1999s. 58(Sch. 2Pt 2 item 3).

S. 33(1D)inserted byNo. 37/1999s. 58(Sch. 2

Pt 2 item 3).

S. 33(1E)inserted byNo. 37/1999s. 58(Sch. 2Pt 2 item 3).

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(b) the member ceases to be a member by reasonof that mortgage;

(c) the amount owing by the member under or inrespect of the mortgage is reduced by theamount (if any) paid up in respect of theshares.

(2) A society shall not be authorized to receive moneyon deposit.

* * * * *

(4) Except as may be provided in any agreementmade in relation to a guarantee executed by theTreasurer of Victoria under this Act, no personlending money to a society shall be bound to seeto the application thereof or be in any wayaffected or prejudiced by the fact that such societyin borrowing such money has contravened theprovisions of this or any other section of this Act

or the rules of the society.(5) Where the Treasurer of Victoria pursuant to

Division one of Part V of this Act executes aguarantee in favour of any authorised deposit-taking institution or approved body guaranteeingthe repayment of any loan to be made by suchauthorised deposit-taking institution or approvedbody to any society registered under this Act, thennotwithstanding anything to the contrary in anyAct or in any memorandum or articles of

association or rules, such authorised deposit-taking institution or approved body shall bedeemed to be empowered to make such loan outof any funds held by it which it is authorized toinvest and in respect of which investment on loanas aforesaid is not specifically prohibited by theterms of any trust governing such funds.

(6) Any mortgage given as security for any money

33(3)pealed byo. 6821 s. 6.

. 33

33(5)mended byo. 11/20013(Sch.m 15.3).

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raised on loan by a society under the powersconferred by this section may within thirty daysafter its execution be registered by filing in theoffice of the registrar a true copy thereof verifiedby statutory declaration.

(7) The registrar shall cause to be entered in a registerto be kept by him for the purpose short particulars(including the names of the parties and theconsideration) of every copy mortgage so filed

with him with a memorandum of the date hourand time at which each of them is so filed, andthat date hour and time shall in the case of eachmortgage be the date hour and time of registration.

(8) The registrar may at any time, upon evidencebeing given to his satisfaction that the debt forwhich any registered mortgage was given hasbeen paid or satisfied, or that a discharge ofmortgage as to the whole or any part of theproperty mortgaged has been executed, cause a

memorandum to that effect to be entered in theregister.

(9) The register so kept and every copy mortgagefiled as aforesaid shall be open to inspection at theoffice of the registrar by any person on paymentof the prescribed fee (if any).

(10) A mortgage shall not, unless registered inaccordance with this section, be of any validity asagainst any subsequent mortgagee whosemortgage is duly registered in accordance with

this section before the registration of such first-mentioned mortgage except in the case of fraud;and, except in the case of fraud, the priority of allmortgages duly registered in accordance with thissection shall be determined by the order ofregistration and not of date, and shall not beaffected by notice actual or constructive of anyunregistered mortgage, or of any contract therefor,

s. 33

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and the knowledge that any such mortgage, orcontract is in existence shall not of itself beimputed as fraud; and every second or subsequentmortgage shall, if duly registered in accordancewith this section, become, upon such registrationand upon satisfaction of all prior mortgagesregistered in accordance with this section, a firstmortgage.

(11) Where before the commencement of the

Co-operative Housing Societies Act 1946 anysuch mortgage as aforesaid has been given by asociety and has not been wholly satisfied, and atrue copy of the mortgage has been filed inaccordance with subsection (6) of this sectionwithin thirty days after the commencement of thesaid Act, the mortgage shall, except in the case offraud, be deemed to have been registered as at thedate of execution thereof, and the particulars andmemorandum thereof shall be entered in theregister accordingly, and the provisions of

subsections (8), (9), (10), and (12) of this sectionshall apply with respect to such mortgageaccordingly.

(12) The Supreme Court, on being satisfied that theomission to register a mortgage within the timerequired by this section or the omission ormis-statement of any particular with respect toany such mortgage or in any memorandum ofsatisfaction was accidental or due to inadvertenceor to some other sufficient cause or is not of a

nature to prejudice the position of creditors ormembers of the society or that on any othergrounds it is just and equitable to grant relief, mayon the application of the society or any personinterested and on such terms and conditions asseem to the Court just and expedient order that thetime for registration be extended or (as the casemay be) that the omission or mis-statement be

. 33

33(12)mended byo. 57/19893(Sch. item.1(a)(b)).

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rectified.

(13) Nothing in the last seven preceding subsectionsshall apply to any mortgage solely of specific landduly registered in accordance with the PropertyLaw Act 1958 or the Transfer of Land Act1958.

33A Society may act as trustee or agent

(1) A society may act as trustee or agent for anapproved housing finance provider for suchpurposes connected with mortgages of freeholdland and on such terms and conditions as areapproved from time to time by the registrar.

(2) The registrar may declare a body corporate to bean approved housing finance provider for thepurposes of subsection (1).

(3) The registrar may revoke a declaration madeunder subsection (2).

34 As to advances by societies

(1) A society shall not make any advance to anyperson who is not a member of the society.

(2) A society shall not make any advance to amember of the society

(a) except for the purpose of enabling such

member(i) to purchase land and erect a dwelling-

house thereon; or

(ii) to erect a dwelling-house on landalready owned by him; or

(iia) to erect a dwelling-house on Crownland leased by him for a term of not

S. 33Ainserted byNo. 36/1990s. 15.

s. 33A

S. 33A(1)amended byNo. 48/1992s. 104(b).

S. 33A(2)amended byNo. 48/1992s. 104(b).

S. 33A(3)

amended byNo. 48/1992s. 104(b).

No. 6138 s. 34.

S. 34(2)(a)(iia)inserted byNo. 8978 s. 3.

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less than 50 years being Crown landwithin an area approved by theGovernor in Council for the purposes ofthis Act;

(iii) to purchase land upon which is situateda dwelling-house; or

(iiia) to maintain and keep in proper repairhis dwelling-house;

(iv) (where the approval of the Governor inCouncil given after consideration of areport by the registrar is first obtained)to discharge a mortgage held by anothersociety upon any land; or

(v) to discharge a mortgage or any othercharge or security over or affecting anyland which mortgage charge or securitywas granted or executed by the memberin anticipation of the society's makingan advance to him, and in any such casethe advance shall not be made by thesociety without the prior approval ofthe registrar;

(vi) in circumstances approved by the

registrar to alter or improve his or herdwelling-house; or

(vii) in circumstances approved by theregistrar to discharge a mortgage orother charge or security over oraffecting land; and

34(2)(a)(iii)mended byos 68217(a), 70974(a)(i)(ii),75 s. 3,

ubstituted byo. 7983 s. 2.

34(2)(a)(iiia)serted byo. 68217(b).

. 34

34(2)(a)(v)mended byo. 70974(b).

34(2)(a)(vi)serted by

o. 36/199016(a),

mended byo. 48/1992104(c).

S. 34(2)(a)(vii)inserted byNo. 36/1990s. 16(a),amended byNo. 48/1992s. 104(c).

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of section 4 of that Act.

35 Contracts by society

(1) Contracts on behalf of a society may be madevaried or discharged as provided in this section.

(2) Any contract which, if made between privatepersons, would be by law required to be in writingand under seal, may be made on behalf of thesociety in writing under the common seal of the

society, and the contract may in the same mannerbe varied or discharged.

(3) Any contract which, if made between privatepersons, would be by law required to be in writingand signed by the party to be charged therewith,may be made on behalf of the society in writing,signed by any person acting under the express orimplied authority of the society, and the contractmay in the same manner be varied or discharged.

(4) Any contract which, if made between private

persons, would by law be valid, although made byparol only and not reduced into writing, may bemade by parol on behalf of the society by anyperson acting under the express or impliedauthority of the society, and the contract may inthe same way be varied or discharged.

(5) Any contract made according to the provisions ofthis section shall be effectual in law and shall bebinding upon the society and all other partiesthereto.

36 As to name and address of society

(1) The name of a society shall include the words"co-operative housing society" as part of the nameand the word "limited" as the last word of thename.

o. 6138 s. 35.

. 35

o. 6138 s. 36.

s. 36

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(2) The name of a society shall be inscribed in legiblecharacters on its seal, and shall be stated in legiblecharacters in all notices, advertisements, and otherofficial publications of the society, and in all billsof exchange, cheques, promissory notes,endorsements, orders for money, receipts, andother documents required in the business of thesociety.

(3) The name of the society with a statement that the

society is registered under this Act shall bepainted or affixed, and kept painted or affixed, onthe outside of its office in a conspicuous place andin letters which are clearly legible.

(4) The office of the society shall be registered asprescribed, and notice of any change of addressshall be transmitted to the registrar within fourteendays after the change.

37 Service of documents on society

Any document may be served on a society byleaving it at the registered office of the societywith some person apparently in the service oremployment of the society or by sending it by postaddressed to the society at its registered office.

38 Effect of rules

The rules of a society shall bind the society and allmembers thereof and all persons claiming throughthem respectively to the same extent as if eachmember had subscribed his name and affixed his

seal thereto, and there were contained in the rulesa covenant on the part of each member and hispersonal representatives to observe all theprovisions of the rules, subject to the provisions ofthis Act and the regulations.

39 Registers and accounts

(1) A society shall keep such registers and accountsas are prescribed.

No. 6138 s. 37.

No. 6138 s. 38.

No. 6138 s. 39.

s. 39

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(2) The registers shall include the following, that is tosay

(a) a register of the directors members andshares;

(ab) a register of the secretaries of the society;

(b) a register of any loans raised and securitiesgiven by the society; and

(c) a register of any advances made andsecurities taken by the society.

(3) The registers shall be kept in such manner andshall contain such particulars as are prescribed.

(4) No notice of any trust, expressed implied orconstructive, shall be entered in any register or bereceived by the society.

40 Inspection of registers etc.

A society shall have at its office and open at allreasonable hours to inspection by any member orcreditor without fee

(a) a copy of this Act and the regulations;

(b) a copy of the rules of the society;

(c) a copy of the last audited balance-sheet andfinal accounts, together with the report of the

auditor;(d) the prescribed register of directors members

and shares; and

(e) the prescribed register of loans raised andsecurities given by the society.

41 Returns

39(2)(ab)serted byo. 91364(3)(a).

39(4)mended byo. 81812(1)(Sch.m 27).

o. 6138 s. 40.

o. 6138 s. 41.

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(1) A society shall, within fourteen days after anychange in the membership of the board, transmitto the registrar information of the change.

(2) A society shall in each year, within three monthsafter the close of its financial year or within suchfurther time as the registrar may authorize,transmit to the registrar the following returns, thatis to say

(a) the names of the directors and the secretaryfor the year then current;

(b) a statement of the assets and liabilities of thesociety at the close of that financial year andof the accounts of the society for thatfinancial year;

(c) a copy of any report by the auditor on suchaccounts; and

* * * * *

(3) A society shall, when so required by notice inwriting by the registrar, furnish to the registrarwithin the time specified in that behalf in thenotice a full list in the prescribed form of all of itsmembers as at the end of the financial year thenlast past or such other particulars as are specifiedin the notice with respect to the membership of the

society.42 Charges

(1) A society shall furnish to any person intending tobecome a member a list of the charges payableunder the rules by a member to the society.

(2) A person who becomes a member of the societyshall be liable to pay only the charges mentioned

s. 41

S. 41(2)(a)

amended byNo. 9136s. 4(3)(b).

S. 41(2)(d)

repealed byNo. 48/1992s. 104(d).

No. 6138 s. 42.

s. 42

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in the list and any charges which may be imposedby any subsequent registered alteration of therules.

(3) The charges may be altered by special resolution.

43 No voting by proxy

The rules of a society shall not allow of voting byproxy.

44 Special resolution

(1) For the purposes of this Act special resolutionmeans a resolution which is passed by a majorityof not less than three-quarters of such members ofthe society entitled under the rules to vote as maybe present in person at any general meeting ofwhich notice specifying the intention to proposethe resolution has been duly given according tothe rules.

(2) At any such general meeting, unless a poll isdemanded, a declaration by the chairman that theresolution has been carried shall be conclusiveevidence of the fact.

(3) A copy of the special resolution, signed by thechairman of the meeting and countersigned by thesecretary, shall be sent to the registrar within onemonth after the passing of the special resolution,or within such further time as the registrar in anyparticular case allows and shall be registered byhim and until the copy is so registered the specialresolution shall not take effect:

* * * * *

Provided that a special resolution for theexpulsion of any member from a society shall notbe registered unless the registrar is satisfied that in

o. 6138 s. 43.

o. 6138 s. 44.

44(3)mended byo. 70975(a).

44(3)ovisopealed byo. 70975(b).

44(3)urtheroviso

mended byo. 70975(c).

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all the circumstances of the case the expulsion isreasonable and that the proceedings in respect ofthe expulsion have been properly and fairlyconducted.

(4) A certificate of registration of any specialresolution or of any alteration of the rules of asociety given by the registrar shall in favour ofany person lending money to the society on thefaith of such certificate, or in favour of any

guarantor of any such loan, be conclusiveevidence that such resolution was duly passed orsuch alteration in the rules duly made (as the casemay be).

Division 5Quarterly returns and reports

44A Quarterly returns by society

(1) The Registrar may by notice in writing given to asociety require the society to submit a return in theform approved by the Registrar as to the society'scompliance with Divisions 3 and 4 of this Part inrespect of each quarter or such period as isspecified in the notice.

(2) The society must submit the return within theperiod specified in the notice.

P 200 penalty units.(3) The Registrar may by notice in writing require a

society to provide further information in relationto any matter contained in or arising out of aquarterly or other return or any other informationwhich the Registrar considers is relevant.

(4) A society must provide the information within the

Pt 2 Div. 5(Heading andss 44A, 44B)inserted byNo. 48/1992s. 97.

S. 44Ainserted by

No. 48/1992s. 97.

s. 44A

S. 44A(1)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 7).



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period specified by the Registrar in the notice.

(5) If a society does not comply with this section eachofficer of the society is guilty of an offence.

(6) The penalty for an offence under subsection (4) or(5) is a penalty of not more than 100 penalty unitsand a daily penalty of not more than 10 penaltyunits for each day during which the default

continues.44B Auditor to submit report

(1) The Registrar may by notice in writing require theauditor of a society to submit a report to theRegistrar in respect of the period specified in thenotice stating the auditor's opinion as to

(a) whether or not the information provided by

the society in its returns is accurate; and(b) whether or not the society is complying with

Divisions 3 and 4 of this Part.

(2) The auditor must submit the report within 60 daysof the end of the period specified in the notice.

(3) The Registrar may by notice in writing require asociety or its auditor to provide furtherinformation in relation to any matter contained inor arising out of the auditor's report or any other

information which the Registrar considers isrelevant.

(4) A society or an auditor of a society must providethe information within the period specified by theRegistrar in the notice.

(5) If a society does not comply with subsection (4),

44Bserted byo. 48/199297.

. 44B

44B(1)mended byo. 37/199958(Sch. 21 item 7).



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(3) While a society is under direction, the Registrarmay

(a) order an audit of the affairs of the society byan auditor chosen by the Registrar at theexpense of the society; or

(b) direct the society to change any practices thatin the Commission's opinion are undesirableor unsound; or

(c) direct the society to cease or limit the raisingor lending of funds or the exercise of otherpowers; or

(d) remove an officer, or all the officers, of thesociety from office and appoint anotherofficer or other officers; or

(e) remove any auditor of the society from officeand appoint another auditor; or

(f) give any other directions as to the way inwhich the affairs of the society are to beconducted or not conducted.

(4) If the society

(a) fails, without reasonable excuse, to complywith a direction given or requirement madeunder this section to the extent that the

society is capable of doing so; or(b) without reasonable excuse, obstructs, hinders

or resists the exercise of the Commission'spowers under this section

the society and any officer of the society who is indefault each commit an offence.

(5) An officer or auditor appointed under this section

44C(3)mended byo. 37/199958(Sch. 21 item 7).

44C(3)(a)mended byo. 37/199958(Sch. 21 item 7).

. 44C

44C(5)mended byo. 37/199958(Sch. 21 item 7).

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holds office for such term as the Registrar directs.

Penalty applying to this section:

100 penalty units and a daily penalty of not morethan 10 penalty units for each day during whichthe default continues or imprisonment for oneyear, or both.

Division 7Supervision levy

44CA Industry Supervision Fund

The Registrar must pay all amounts received assupervision levy under section 44D into theIndustry Supervision Fund established under theFinancial Sector Reform (Victoria) Act 1999.

44D Supervision levy

(1) The Registrar may determine that an amount is tobe paid to it by societies as a supervision levy.

(2) The amount of the levy may be fixed by theRegistrar as

(a) a specified amount;

(b) a specified percentage of an amountdetermined by the Registrar either byreference to the amounts of reserves,obligations and debts of the society or to anyother factors relating to the funds or businessof the society as the Registrar determines asat a date specified by the Registrar; or

Pt 2 Div. 7

(Heading ands. 44D)inserted byNo. 48/1992s. 98.

S. 44CAinserted byNo. 37/1999s. 58(Sch. 2Pt 1 item 8).

s. 44CA

S. 44D

inserted byNo. 48/1992s. 98.

S. 44D(1)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 7).

S. 44D(2)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 7).

S. 44D(2)(b)amended byNo. 37/1999s. 58(Sch. 2Pt 1 item 7).

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(c) both a specified amount and such a specifiedpercentage.

(3) The Registrar may require the supervision levy tobe paid in one amount or by instalments whichmay include an amount for interest at a rate fixedby the Registrar.

(4) The supervision levy must be paid by the societywithin 30 days of being notified by the Registrarby notice in writing of the amount that is payable.

(5) If a society is in default in payment of thesupervision levy

(a) interest accrues on the amount outstandingfrom the date of default at the rate specifiedby the Registrar; and

(b) the Registrar may recover any amount

outstanding together with interest accrued asa debt in a court of competent jurisdiction.

(6) The Registrar may on the application of a society

(a) vary the amount of the levy payable by thesociety; or

(b) vary the period within which the levy is to be

paid; or(c) exempt the society from payment of the levy.

(7) The amount paid by a society as a supervisionlevy is to be treated as an expense in the accountsof the society.

(8) The Registrar must consult the Committee before

44D(3)mended byo. 37/199958(Sch. 21 item 7).

44D(4)mended byo. 37/199958(Sch. 2

1 item 7).

. 44D

44D(5)(a)mended byo. 37/199958(Sch. 21 item 7).

44D(5)(b)mended by

o. 37/199958(Sch. 21 item 7).



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making a decision under this section.

_______________

s. 44D

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PART IIIRULES, MANAGEMENT, &c.

Division 1Rules

45 Model rules

(1) Model rules for a society shall be prescribed byregulation.

(2) A society which is to be registered under this Act,or which is registered thereunder, may adopt as itsrules all or any of the model rules.

(3) Where a society is formed under this Act, in so faras any rules tendered for registration are notinconsistent with or do not exclude or modify themodel rules as then in force, such model rulesshall be deemed to form part of the rules of thesociety in the same manner and to the same extentas if they were contained in the rules tendered andregistered.

(4) No alteration of the model rules shall apply to anysociety which is established before the regulationprescribing the alteration comes into operation,unless the society by special resolution adopts thealteration in its rules.

46 Rules of a society

(1) The rules of a society shall be divided intoparagraphs numbered consecutively, and shall setforth

(a) the name of the society;(b) where the office of the society is to be

situated;

(c) the objects of the society;

(d) the nominal value of each share in thesociety;

o. 6138 s. 45.

. 45

o. 6138 s. 46.

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(e) the maximum proportion of the shares whichmay be held by a member;

(f) the fixed date on which or the object or eventon the attainment or occurrence of which thesociety is to terminate;

(g) the periodic subscriptions by which or themanner in which shares are to be paid forand the penalties for late payment;

(h) the minimum number of shares to besubscribed for by a member;

(i) the manner in which shares may betransferred;

(j) the manner in which the funds of the societyare to be managed, and, in particular, themode of drawing and signing cheques draftsbills of exchange promissory notes and otherdocuments for and on behalf of the society;

(k) the manner in which an application for anadvance is to be made, the conditions withwhich an applicant is to comply, the mannerin which an advance is to be made andrepaid, the conditions upon which a membermay pay the amount due by him before theexpiration of the period for which theadvance is made, and the terms upon which amortgage may be redeemed;

(l) the mode and conditions of admission tomembership, and the payment to be made or

the share or interest to be acquired before theexercise of the rights of membership;

(m) the rights and liabilities of members, and ofthe estates of deceased members and ofmembers whose estates have beensequestrated or assigned;

(n) whether or not shares may be withdrawn,

s. 46

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manner of appointing remunerating andremoving auditors, the powers and duties ofauditors, and in particular their powers andduties with respect to the inspection ofsecurities belonging to the society;

(w) provision for the custody of securitiesbelonging to the society;

(x) the charges, including any charges onadmission or for management expenses orotherwise, which are to be payable by amember to the society;

(y) the manner of altering and rescinding therules, and of making additional rules;

(z) provision for the custody and use of the sealof the society;

(aa) the manner in which the society may bewound up; and

(bb) such other matters as are prescribed by thisAct or the regulations.

(2) Any person shall be entitled to obtain from asociety a copy of its rules on payment of a sumnot exceeding twenty-five cents ($0.25).

(3) The rules of a society shall not provide for theexpulsion of any member from the societyotherwise than by a special resolution.

47 Alteration of rules

(1) The rules of a society shall not be altered unlessthe alteration has been approved by a specialresolution or by the registrar.

(2) The society shall within one month after approvalby special resolution or within such further timeas the registrar in any particular case allows applyto the registrar to have the alteration registered

No. 6138 s. 47.

S. 47(1)

amended byNo. 37/1999s. 58(Sch. 2Pt 2 item 4).

s. 47

S. 47(2)amended byNos 7097s. 6(a),37/1999s. 58(Sch. 2Pt 2 item 5).

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and the application shall be made as prescribed.

* * * * *

(3) If the registrar is satisfied that the alteration is notcontrary to this Act or the regulations and that therules as altered are suitable and sufficient for thepurposes of the society, the registrar shall register

and certify the alteration as prescribed, and untilthe alteration is so registered and certified thealteration shall not take effect.

(3A) The registrar may alter the rules of a society andmust register and certify the alteration.

(4) The rules of the society shall be read subject toany alteration so registered and certified.

(5) In this Act, alteration of a rule includes addition to

a rule and rescission of a rule.

Division 2Management

48 Board of directors

(1) The business and operations of a society shall bemanaged and controlled by a board of directors,and for that purpose the board, except as providedin this section, shall have and may exercise thepowers of the society as if they had been expressly

conferred on the board by a general meeting of thesociety.

(2) The powers of the board shall be subject to anyrestrictions imposed thereon by this Act or theregulations or by the rules of the society.

(3) Every director acting in the business or operationsof the society pursuant to the rules or to a

47(2)ovisopealed byo. 70976(b).

47(3A)serted byo. 37/199958(Sch. 22 item 6).

o. 6138 s. 48.

. 48

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resolution duly passed by the board shall bedeemed to be the agent of the society for allpurposes within the objects of the society.

(4) The acts of a director shall be validnotwithstanding any defect that may afterwards bediscovered in his appointment or qualification.

(5) A director shall not be held liable to the societyfor any loss that the society may sustain, unlessthe loss was due to his misconduct or negligenceor to his failure to comply with any of theprovisions of this Act or of the regulations or ofthe rules of the society.

(6) The directors shall be elected at a general meetingof the society in accordance with the rules of thesociety:

Provided that the first directors shall be elected atthe meeting for the formation of the society.

(7) The number of directors shall not be less than five

and no person shall be qualified to be a directorunless he is a member of the society:

Provided that where the Registrar, on applicationmade by the society, is satisfied that the electionof five directors is onerous having regard to thetotal number of members of the society and thevolume of its business the Registrar may authorizethe society in writing to carry on business withthree directors and the society may actaccordingly.

(8) Meetings of the board shall be held as often asmay be necessary for properly conducting thebusiness and operations of the society, but shall beheld at least quarterly, and a quorum of a meetingof the board shall be as prescribed by the rules ofthe society but shall not in any case be less thanhalf the number of directors.

s. 48

S. 48(7)Provisoinserted byNo. 8298s. 4(1).

S. 48(8)amended byNo. 8298s. 4(2).

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(9) The chairman of the board shall be elected by theboard in accordance with the rules of the society,and shall hold office and retire, and may beremoved from office, as prescribed by the rules ofthe society.

(10) The directors shall hold office and retire, and maybe removed from office, as prescribed by the rulesof the society.

(11) The office of a director shall be vacated in suchcircumstances, if any, as may be prescribed by therules of the society, and in any of the followingcases, that is to say

(a) if he becomes bankrupt or insolvent orassigns his estate for the benefit of orcompounds with his creditors;

(b) if he becomes of unsound mind or becomes apatient within the meaning of the MentalHealth Act 1986;

(c) if he is convicted of any offence under thisAct, or if he is convicted of any indictableoffence o

CHS ACT1958-320

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