This Regulation makes Westpac the legal successor of the Bank of Melbourne on a named succession day, automatically vesting the Bank of Melbourne’s assets, liabilities, contracts, places of business and employees in Westpac and permitting continued use of the Bank of Melbourne name. It affects customers, depositors, creditors, employees, land registries and regulators by substituting Westpac in proceedings, preserving employee entitlements, enabling certificate-driven registration changes, and giving the Treasurer discretion to require payment instead of State duties (clauses 5–16, 17–20).
This Regulation effects the legal succession of the Bank of Melbourne Limited into Westpac Banking Corporation by operation of law on the succession day. Mechanically, it (a) declares Westpac to be the successor in law and a legal continuation of the Bank of Melbourne, and dissolves the Bank of Melbourne (s 5); (b) vests all assets and liabilities of the Bank of Melbourne in Westpac without need for conveyance, assignment or other formality (s 6(1)(a)-(b)); (c) preserves the continuing operation of all instruments, documents and security by treating references to the Bank of Melbourne in those instruments as references to Westpac (s 7(1)); (d) substitutes Westpac as a party to pending proceedings to which the Bank of Melbourne was a party (s 9(1)); (e) transfers employees on the same terms and with preserved continuity of service (s 10); and (f) allows Westpac to operate under the Bank of Melbourne name and to sign public documents and eligible negotiable instruments in that name (s 15(1) and (4)).
The Regulation also sets a procedural framework to make those transfers administratively effective. It authorises designated persons to issue certificates about the operation of the Regulation and to certify that particular assets, liabilities or other matters have become translated assets or translated liabilities of Westpac (s 17). Those certificates are conclusive evidence of the matters certified, subject only to proof to the contrary (s 17(2)). Specific registry consequences follow: the registered proprietorship of land held by the Bank of Melbourne is taken to be Westpac (s 18(1)), company charges are taken to be transferred for Corporations Law purposes where a certificate is lodged with the Australian Securities Commission and a fee paid (s 19), and other registers are to be amended on the production of a certificate by an authorised person (s 20). The Treasurer retains express discretion to require Westpac to pay an amount instead of State duties and imposts arising from the merger, and to certify that either the requirement has been complied with or that no requirement is to be made (s 16).
Current sections
Direct links to the current provisions in Bank Mergers (Bank of Melbourne) Regulation 1998.
asset means property, or a right, of any kind, and includes:
(a) any legal or equitable estate or interest (whether present or future, vested or contingent or tangible or intangible) in real or personal property of any kind, and
(b) any chose in action, and
(c) any right, interest or claim of any kind, including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing), and
authorised person, for the purposes of a provision of this Regulation, means:
(a) the Treasurer, or
(b) the chief executive officer of Westpac, or
(c) the secretary of Westpac, or
(d) any of the following persons, if the Treasurer designates in writing that person as an authorised person for the purposes of the provision:
(i) a senior executive of Westpac,
(ii) a member of the Chief Executive Service or the Senior Executive Service of the Public Service.
Bank of Melbourne means the Bank of Melbourne Limited (ACN 007 270 448).
chief executive officer of Westpac means the officer having the day to day management of the affairs of Westpac and includes an officer acting from time to time in that capacity.
eligible negotiable instrument has the same meaning as it has in the Corporations Law.
instrument includes a document and an oral agreement.
interest, in relation to land, includes:
(a) a legal or equitable estate or interest in the land, or
(b) a right, power or privilege over, or in relation to, the land.
liability includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).
public document has the same meaning as it has in the Corporations Law.
secretary of Westpac means the person holding that office or a person acting from time to time in that office.
succession day means the day on which this Regulation commences.
translated asset means an asset referred to in clause 6.
translated instrument, in relation to the Bank of Melbourne, means an instrument (including a legislative instrument other than this Regulation) subsisting immediately before the succession day:
(a) to which the Bank of Melbourne is a party, or
(b) that was given to, by or in favour of, the Bank of Melbourne, or
(c) that refers to the Bank of Melbourne, or
(d) under which money is, or may become, payable or other property is, or may become, liable to be transferred, to or by the Bank of Melbourne.
translated liability means a liability referred to in clause 6.
Westpac means Westpac Banking Corporation (ARBN 007 457 141).
(2) Where reference is made in this Regulation to anything done for a purpose connected with, or arising out of, the operation or effect of this Regulation, that reference is taken to include any transaction entered into, or any instrument or document made, executed, lodged or given, for that purpose.
4
Notes
4 Notes
4 Notes
The explanatory note and table of contents do not form part of this Regulation.
Part 2
Bank reorganisation
Part 2 Bank reorganisation
Part 2 Bank reorganisation
5
Consequence of succession
5 Consequence of succession
5 Consequence of succession
(1) On the succession day, in accordance with the principle of succession in law:
(a) Westpac becomes the successor in law of the Bank of Melbourne and is for all purposes a continuation of and the same legal entity as the Bank of Melbourne, and
(b) the Bank of Melbourne is liquidated and dissolved.
(2) Nothing in any other provision of this Part limits the operation of this clause.
6
Assets and liabilities
6 Assets and liabilities
6 Assets and liabilities
(1) On the succession day, in accordance with the principle of succession in law:
(a) all assets of the Bank of Melbourne, wherever located, vest in, or are otherwise available for the use of, Westpac without the need for any conveyance, transfer, assignment or assurance and without the need for any prior notice or further act, and
(b) all liabilities of the Bank of Melbourne, wherever located, become liabilities of Westpac without the need for any prior notice or further act.
(2) On and from the succession day Westpac may execute an instrument discharging, surrendering, transferring or otherwise dealing with a transferred asset or liability in its own name, in the name of the Bank of Melbourne or the name of any predecessor in title to the Bank of Melbourne.
7
Translated instruments
7 Translated instruments
7 Translated instruments
(1) Each translated instrument in respect of the Bank of Melbourne continues to have effect, according to its tenor, on and after the succession day, as if a reference in the instrument to the Bank of Melbourne were a reference to Westpac.
(2) Without limiting subclause (1), an instrument securing the payment of moneys owing to the Bank of Melbourne is taken to secure moneys owing to Westpac for the purposes of determining liability for stamp duty in respect of that instrument or any collateral instrument.
8
Places of business
8 Places of business
8 Places of business
On and after the succession day, a place that, immediately before that day, was a place of business of the Bank of Melbourne is taken to be a place of business for Westpac.
9
Legal proceedings and evidence
9 Legal proceedings and evidence
9 Legal proceedings and evidence
(1) Where, immediately before the succession day, proceedings (including arbitration proceedings) to which the Bank of Melbourne was a party were pending or existing in any court or tribunal, Westpac is, on that day, substituted for the Bank of Melbourne as a party to the proceedings and has the same rights in the proceedings as the Bank of Melbourne had.
(2) Where, before the succession day, documentary or other evidence would have been admissible for or against the interests of the Bank of Melbourne, that evidence is admissible, on or at any time after that day, for or against the interests of Westpac.
10
Employees
10 Employees
10 Employees
On the succession day each employee of the Bank of Melbourne ceases to be employed by the Bank of Melbourne and becomes an employee of Westpac on the same terms and conditions as those that applied immediately before the succession day and this section does not:
(a) affect his or her contract of employment, or
(b) interrupt his or her continuity of service, or
(c) prejudice his or her existing or accruing rights to recreation leave, sick leave, superannuation or long service leave or any other employee entitlement existing immediately before the succession day, or
(d) affect rights or liabilities under any provident, benefit, superannuation or retirement fund or scheme relating to employees of the Bank of Melbourne, or
(e) constitute a retrenchment or redundancy or give rise to any right of the employee to receive any payment or other benefit.
11
Directors
11 Directors
11 Directors
A person holding office as a director or secretary of the Bank of Melbourne immediately before the succession day ceases to hold office on and from the succession day and is not by virtue only of this Regulation a director or secretary of Westpac.
12
Relationships with customers and depositors
12 Relationships with customers and depositors
12 Relationships with customers and depositors
(1) The relationship between the Bank of Melbourne and a customer or depositor at an office or branch or agency of the Bank of Melbourne is, on and after the succession day, between Westpac and that customer or depositor, and gives rise to the same rights and duties (including rights of set-off) as would have existed before that day if that relationship had always been between Westpac and the customer or depositor.
(2) Any instruction, order, direction, mandate or authority given by that customer or depositor to the Bank of Melbourne and subsisting on or given after the succession day is, unless and until revoked or cancelled, taken to have been given to Westpac.
(3) Any information held immediately before the succession day by the Bank of Melbourne relating to a customer or depositor of the Bank of Melbourne at that time is available to and may be used by Westpac on and after the succession day.
13
Westpac to do what is necessary to carry out reorganisation
13 Westpac to do what is necessary to carry out reorganisation
13 Westpac to do what is necessary to carry out reorganisation
Westpac must do whatever is necessary to ensure that this Part is fully effective, particularly in relation to its business outside New South Wales, whether within or outside Australia.
14
Revocation of banking authority
14 Revocation of banking authority
14 Revocation of banking authority
Within three months following the succession day, Westpac must by notice in writing to the Treasurer in accordance with section 9 of the Banking Act 1959 of the Commonwealth request that the authority to carry on banking business in Australia granted to the Bank of Melbourne be revoked.
15
Business names and other names
15 Business names and other names
15 Business names and other names
(1) Westpac may, in addition to any other name it is entitled to use, operate in this State under the name “Bank of Melbourne” or “Bank of Melbourne Limited (ACN 007 270 448)” (the permitted business names).
(2) This clause does not prevent Westpac from registering any of the permitted business names, or any other name, under the Business Names Act 1962.
(3) In this clause, a reference to operating under a name includes a reference to engaging in any conduct in respect of which, for the purpose of the Business Names Act 1962, that name would (but for subclause (1)) have been required to be registered.
(4) An officer or employee of Westpac may, on behalf of Westpac, sign, issue or publish, or authorise the signing, issuing or publication, of a public document or eligible negotiable instrument of Westpac in the name of “Bank of Melbourne Limited (ACN 007 270 448)” or “Bank of Melbourne Ltd (ACN 007 270 448)”.
Part 3
Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
16
Payment of an amount instead of State duties or other imposts
16 Payment of an amount instead of State duties or other imposts
16 Payment of an amount instead of State duties or other imposts
(1) Despite any other provision of this Regulation, Part 2 does not have effect unless any requirement made under this clause has been complied with or the Treasurer determines that no requirement is to be made. The Treasurer may issue a certificate to that effect under subclause (4) or (5).
(2) The Treasurer may require Westpac to pay to the Treasurer instead of all duties, taxes, charges, rates or other imposts for which Westpac or the Bank of Melbourne would be liable under the law of this State as a result of, or in connection with, the merger of the Bank of Melbourne with Westpac an amount that is, in the opinion of the Treasurer, proper in the circumstances.
(3) The amount payable to the Treasurer is to be determined by the Treasurer in accordance with such principles as the Treasurer thinks appropriate.
(4) The Treasurer must, when satisfied that a requirement under this clause has been complied with, give Westpac a certificate stating that the requirement has been complied with.
(5) If the Treasurer determines that no requirement will be made under this clause, the Treasurer must give Westpac a certificate stating that no requirement is to be made.
(6) If a certificate is given under subclause (4) or (5), Westpac is not liable for any duties, taxes, charges, rates or other imposts of a kind referred to in subclause (2), despite the provisions of any Act relating to the payment of duties, taxes, charges, rates or other imposts.
(7) A copy of a certificate under this clause, certified as such by the chief executive officer of Westpac, or a person authorised to do so by the chief executive officer, is for all purposes and in all courts, tribunals and proceedings, conclusive evidence of the matters certified.
(8) This clause does not apply to any duties, taxes, charges, rates or other imposts:
(a) payable to the Australian Securities Commission under the Corporations Law, Corporations Regulations, ASC Law or ASC Regulations, or
(b) payable to the Registrar-General in respect of any act, dealing or other transaction relating to land.
17
Certificates evidencing operation of Regulation
17 Certificates evidencing operation of Regulation
17 Certificates evidencing operation of Regulation
(1) An authorised person may, by certificate signed by that person, certify any matter in relation to the operation or effect of this Regulation and, in particular, may certify that:
(a) a specified matter or thing relevant to Westpac is an aspect of the operation or effect of this Regulation, or
(b) a specified thing was done for a purpose connected with, or arising out of, the operation or effect of this Regulation in relation to Westpac, or
(c) a specified asset of the Bank of Melbourne has become a translated asset of Westpac, or
(d) a specified liability of the Bank of Melbourne has become a translated liability of Westpac.
(2) For all purposes and in all courts, tribunals and proceedings, a certificate under subclause (1) is conclusive evidence of the matters certified, except to the extent that the contrary is proved.
18
Interests in land
18 Interests in land
18 Interests in land
(1) Without prejudice to the generality of this Regulation and despite anything to the contrary in any other Act or law, if, immediately before the succession day, the Bank of Melbourne is, or is to be taken to be, the registered proprietor of an interest in land under the Real Property Act 1900, on and after the succession day:
(a) Westpac is to be taken to be the registered proprietor of that interest in land or the caveator of the registrable interest, as the case may be, and
(b) Westpac has the same rights and remedies in respect of that interest as the Bank of Melbourne had.
(2) No person dealing with Westpac (in any capacity at all), nor the Registrar-General, nor any other person registering or certifying title to land or having the power or duty to examine or receive evidence as to title to land, is, in respect of any dealing or transaction in relation to land entered into or purporting to be entered into by Westpac, where the registered proprietor of that land is the Bank of Melbourne, to be concerned to see, or enquire into, whether the land has vested in Westpac.
19
Company charges
19 Company charges
19 Company charges
(1) Section 268 (1) of the Corporations Law is taken to have been complied with in respect of all charges of which Westpac becomes the holder by virtue of this Regulation if there is lodged with the Australian Securities Commission a certificate signed by an authorised person stating that by virtue of this Regulation the assets and liabilities of the Bank of Melbourne have become vested in Westpac and if Westpac pays the fee referred to in subclause (2).
(2) The fee payable in relation to the lodgment of the certificate under subclause (1) is to be an amount agreed on between Westpac and the Australian Securities Commission, or the total amount payable for lodgment of the transfer of the charges detailed in the certificate as prescribed by the regulations made under the Corporations Law, whichever is the lesser.
20
Other assets
20 Other assets
20 Other assets
(1) If:
(a) an asset (other than an interest in land referred to in clause 18 or a company charge referred to in clause 19) becomes under this Regulation an asset of Westpac, and
(b) any person or authority has, under a law of this State, responsibility for keeping a register in respect of assets of that kind,
then:
(c) any requirement of that law relating to the transfer of the property from one person to another is taken to have been complied with if there is lodged with that person or authority a certificate signed by an authorised person stating that by virtue of this Regulation the assets and liabilities of the Bank of Melbourne have vested in Westpac, and
(d) that person or authority, on being requested to do so, must make any amendments to that register which are necessary to make it accurately reflect the effect of this Regulation.
(2) This clause does not affect the operation of the Corporations Law.
21
Documents purporting to be certificates
21 Documents purporting to be certificates
21 Documents purporting to be certificates
A document purporting to be a certificate given under this Part is, unless the contrary is established, taken to be such a certificate and to have been properly given.
22
Evidence
22 Evidence
22 Evidence
(1) The public documents of the Bank of Melbourne are for the purposes of sections 156 to 158 of the Evidence Act 1995 taken to be, and to have been, public documents used in the ordinary business of Westpac.
(2) For the purposes of this clause, public document has the same meaning as in the Evidence Act 1995.
23
Construction of references
23 Construction of references
23 Construction of references
If any Act or regulation (other than the Act or this Regulation) or any instrument whenever made or executed (other than an instrument constituting or relating to a provident, benefit, superannuation or retirement fund) or any register established or kept under any Act contains any reference express or implied to the Bank of Melbourne or a body referred to in Schedule 1, the reference is, on and after the appointed day, to be read as a reference to Westpac, unless the context otherwise requires.
24
Regulation to have effect despite other instruments
24 Regulation to have effect despite other instruments
24 Regulation to have effect despite other instruments
(1) This Regulation has effect despite anything in any contract, deed, undertaking, agreement or other instrument (whether made before or after the commencement of this Regulation).
(2) Nothing done by or under this Regulation:
(a) places Westpac, the Bank of Melbourne or another person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong, or
(b) places Westpac, the Bank of Melbourne or another person in breach of:
(i) any law of New South Wales, or
(ii) any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information, or
(c) constitutes an event or fulfils any condition which allows a person to terminate or otherwise exercise a right or power under any agreement or liability, or
(d) releases any surety or other obligor, wholly or partly, from any liability, whether actual, contingent or prospective.
(3) Without limiting subclause (1), where, apart from this clause, the advice or consent of a person would be necessary in any particular respect in order to give effect to this Regulation, the advice is taken to have been obtained or the consent is taken to have been given, as the case requires.
(4) Nothing in this Regulation exempts Westpac from the provisions of any Act or statutory instrument relating to companies carrying on the business of banking.
Schedule 1
Previous bodies
Schedule 1 Previous bodies
Schedule 1 Previous bodies
(Clause 23)
A.F.T. Keystone Permanent Building Society
Central Permanent Building Society
Dandenong-Westernport Permanent Building Society
Eastern Suburbs Permanent Building Society
Greater Ballarat Permanent Building Society
Keystone Ringwood Permanent Building Society
Knox Premier Building Society
Mutual Permanent Building Society
Peninsula Permanent Building Society
Permanent Building Society of Victoria
Port Phillip Permanent Building Society
Provident Building Society
R.E.A.A. Permanent Building Society
RESI Building Society
RESI-Statewide Building Society
Ringwood Permanent Building Society
Statewide Building Society
The RESI Permanent Building Society
United Permanent Building Society
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Regulation
1 Name of Regulation
1 Name of Regulation
This Regulation is the Bank Mergers (Bank of Melbourne) Regulation 1998.
2 Commencement
2 Commencement
2 Commencement
This Regulation commences on 3 May 1998.
3 Definitions
3 Definitions
3 Definitions
(1) In this Regulation:
asset means property, or a right, of any kind, and includes:
(a) any legal or equitable estate or interest (whether present or future, vested or contingent or tangible or intangible) in real or personal property of any kind, and
(b) any chose in action, and
(c) any right, interest or claim of any kind, including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing), and
authorised person, for the purposes of a provision of this Regulation, means:
(a) the Treasurer, or
(b) the chief executive officer of Westpac, or
(c) the secretary of Westpac, or
(d) any of the following persons, if the Treasurer designates in writing that person as an authorised person for the purposes of the provision:
(i) a senior executive of Westpac,
(ii) a member of the Chief Executive Service or the Senior Executive Service of the Public Service.
Bank of Melbourne means the Bank of Melbourne Limited (ACN 007 270 448).
chief executive officer of Westpac means the officer having the day to day management of the affairs of Westpac and includes an officer acting from time to time in that capacity.
Official rationale for these mechanics is not contained as an explanatory memorandum within the Regulation text provided. The provisions make the Bank of Melbourne’s assets, liabilities, personnel and contractual relationships operate as if they had always formed part of Westpac, and they reduce the need for transactional steps such as stampings, transfers, re-executions and re-registrations. The Regulation also creates administrative shortcuts through conclusive certificates and statutory deeming of transferred title. The Treasurer and authorised persons are given decisive roles in implementing these shortcuts, including the power to determine payments in lieu of duties (s 16) and to issue certificates that are conclusive in legal proceedings (s 17).
Key immediate effects are that customers, depositors and counterparties find their contractual relationship continues with Westpac (s 12), employees become Westpac employees without interruption of continuity of service (s 10), directors and secretaries of the Bank of Melbourne cease to hold office in consequence of the succession (s 11), and Westpac is required to take steps to make the reorganisation fully effective, including seeking revocation of the Bank of Melbourne’s banking authority under the Commonwealth Banking Act within three months (s 13 and s 14). The Regulation also states it has effect despite contrary provisions in contracts or other instruments, while at the same time declaring that nothing done under the Regulation places parties in breach of contract or releases sureties (s 24).
This is a statutory vehicle for corporate succession, and it replaces or eliminates transactional and registry frictions by statutory vesting and certificates, while vesting practical discretion in the Treasurer and in authorised persons identified in the Regulation (s 3, s 16, s 17).
Main concepts
The Regulation builds on a handful of recurring concepts that determine how assets, liabilities, rights and formalities travel from the Bank of Melbourne to Westpac.
Succession in law and automatic vesting: Clause 5(1) declares the principle of succession so that Westpac is the successor in law of the Bank of Melbourne and the Bank of Melbourne is liquidated and dissolved on the succession day. Clause 6(1) implements automatic vesting, providing that all assets and liabilities of the Bank of Melbourne, wherever located, vest in or become liabilities of Westpac without need for further conveyance, transfer, assignment or assurance.
Translated instruments, assets and liabilities: The Regulation introduces the concept of "translated instrument", "translated asset" and "translated liability" (s 3(1) definitions; clauses 6 and 7). A translated instrument is any instrument subsisting immediately before succession which involved, referred to, or was given to or by the Bank of Melbourne. Those instruments continue in effect on and after the succession day as if references to the Bank of Melbourne were references to Westpac (s 7(1)). Clause 6(2) permits Westpac to execute discharge or transfer instruments in its own name or in the Bank of Melbourne’s name.
Authorised persons and certificates: The Regulation defines "authorised person" to include the Treasurer, the chief executive officer of Westpac, the secretary of Westpac, and other persons designated by the Treasurer in writing (s 3(1)). Clause 17 allows an authorised person to certify matters about the operation or effect of the Regulation, including that particular assets or liabilities have become translated assets or translated liabilities. Clause 17(2) makes such certificates conclusive evidence of the matters certified, unless the contrary is proved.
Deeming of legal status and registers: The Regulation statutorily deems Westpac to be the registered proprietor of land interests held by the Bank of Melbourne (s 18(1)) and to be substituted as a party to pending proceedings involving the Bank of Melbourne (s 9(1)). For charges under the Corporations Law, s 19 treats lodgment of a certificate as compliance with s 268(1) of the Corporations Law and specifies a fee arrangement with the Australian Securities Commission. Clause 20 establishes a streamlined mechanism for other registers maintained by State authorities, where production of an authorised certificate is taken to comply with transfer requirements and requires the authority to amend the register to reflect the Regulation’s effects.
Preservation of customer relationships and information: Clause 12(1) deems the relationship between the Bank of Melbourne and customers or depositors to continue as a relationship between Westpac and those persons, with the same rights and duties including set-off. Clause 12(3) makes information held by the Bank of Melbourne available to Westpac on and after the succession day.
Protective carve-outs and non-exemption: Clause 24(1) gives the Regulation effect despite anything in contract or instrument, while clause 24(2) contains a series of provisions limiting the consequences, including that nothing done by or under the Regulation places Westpac or other persons in breach of contract or other law, or constitutes an event that allows termination under an agreement, or releases sureties. Clause 24(4) reaffirms that the Regulation does not exempt Westpac from Acts or statutory instruments relating to companies carrying on the business of banking.
Fiscal discretion for the Treasurer: Clause 16 gives the Treasurer power to require Westpac to pay an amount in lieu of State duties, taxes, charges, rates and other imposts that would otherwise be payable by Westpac or the Bank of Melbourne as a result of the merger. The Treasurer determines the amount on principles he or she thinks appropriate, and must give a certificate when satisfied that any requirement has been complied with or that no requirement will be made (s 16(2)-(5)).
Evidentiary treatment of documents: Clause 22 treats the Bank of Melbourne’s public documents as public documents of Westpac for the purposes of the Evidence Act 1995, and clause 21 deems documents purporting to be certificates to be such certificates unless the contrary is established.
These concepts form an operational package: statutory vesting and deeming reduce transactional steps; authorised certificates and Treasurer discretion provide administrative gatekeeping and fiscal settlement; registers and evidentiary treatment are adapted so public and private counterparties can accept Westpac as successor without relitigation of title or need to re-execute many instruments.
Who it affects
This Regulation affects a defined set of parties through direct statutory consequences and administrative duties.
Westpac Banking Corporation: The primary operational subject. Westpac becomes the successor in law and the same legal entity as the Bank of Melbourne on the succession day (s 5(1)(a)). Westpac must undertake whatever is necessary to ensure the Regulation is effective (s 13), must request revocation of Bank of Melbourne’s banking authority under the Commonwealth Banking Act within three months (s 14), may operate under the business names specified (s 15), and may execute instruments in its own name or in the Bank of Melbourne name for dealing with translated assets or liabilities (s 6(2)). Westpac also bears potential fiscal obligations if the Treasurer requires payment under s 16.
Bank of Melbourne Limited: The Bank of Melbourne is the transferring entity. It is liquidated and dissolved on the succession day (s 5(1)(b)). Immediately before succession, its assets, liabilities, public documents, employees, and ongoing contractual relationships are swept into Westpac per the statutory provisions (s 6, s 10, s 12, s 22).
Customers, depositors and counterparties: Those with accounts, contracts, instructions, mandates, securities or other dealings with the Bank of Melbourne at its offices or branches find that, on and after the succession day, their relationship is with Westpac and continues to give the same rights and duties, including set-off (s 12(1)). Subsisting instructions, orders, mandates or authorities continue and are treated as having been given to Westpac (s 12(2)). Information held by the Bank of Melbourne about customers is available for use by Westpac (s 12(3)).
Employees: Every employee of the Bank of Melbourne ceases to be employed by that entity and becomes an employee of Westpac on the same terms and conditions and without interruption of continuity of service (s 10). Clause 10 expressly states the transfer does not constitute retrenchment or redundancy nor give rise to a right to a payment on that basis, and preserves existing employee entitlements and rights under provident, benefit, superannuation and retirement funds (s 10(a)-(e)).
Directors and secretaries of the Bank of Melbourne: Those office-holders cease to hold their offices on the succession day and do not, solely by virtue of the Regulation, become directors or secretaries of Westpac (s 11).
Registries and registration authorities: Bodies responsible under State law for keeping registers of interests, charges, land title, or other assets are required to accept certificates signed by authorised persons and to update their registers to reflect that assets vested in Westpac are translated assets (s 19, s 20). The Registrar-General and other persons registering or certifying title to land are not required to enquire into whether land has vested in Westpac where the registered proprietor immediately before succession was the Bank of Melbourne (s 18(2)).
The Treasurer and authorised persons: The Treasurer has central powers under the Regulation. The Treasurer may require payment in lieu of State imposts (s 16(2)), determine the amount payable (s 16(3)), issue certificates under s 16(4) or (5), and may designate persons as authorised persons for the purposes of the Regulation (s 3(1)(d)). Authorised persons include the Treasurer, the chief executive officer and the secretary of Westpac, and any person designated by the Treasurer in writing, such as senior executives or members of the Public Service senior executive bodies (s 3(1)). Authorised persons can issue certificates that are conclusive evidence of matters relating to the Regulation (s 17).
Australian Securities Commission and Commonwealth regulators: The Regulation interacts with the Corporations Law and Corporations Regulations where company charges are involved. Lodgment of a certificate with the Australian Securities Commission can be used to satisfy requirements under the Corporations Law for transfer of charges, subject to fee arrangements specified (s 19). The Regulation does not create exemptions from obligations under the Corporations Law or other Commonwealth legislation, and some fiscal payments remain payable to Commonwealth authorities per s 16(8)(a) and (b).
Other persons and registrants: Any person who has dealings with Westpac or the Bank of Melbourne in any capacity, including persons holding or party to instruments that refer to the Bank of Melbourne or require consents, is impacted by the Regulation because it deems consents or transfers to have been given and instruments to be translated unless the context otherwise requires (s 23, s 24).
Who pays: Westpac may be required to pay an amount in lieu of State duties and imposts at the Treasurer’s discretion (s 16). Westpac also must pay any fee agreed with the Australian Securities Commission or prescribed under the Corporations Law regulations for lodgment of certificates in respect of company charges (s 19(2)).
Who decides: The Treasurer and authorised persons are the central decision-makers for fiscal and evidentiary matters and for designating authorised persons (s 3(1)(d), s 16, s 17).
Timing: The Regulation commences on a specific succession day, stated to commence on 3 May 1998 (s 2), and Westpac must request revocation of banking authority within three months following that day (s 14).
Key duties and rights
This Regulation imposes duties and creates statutory rights and presumptions that alter how parties must act and what they may expect.
Duties on Westpac
Duty to carry out the reorganisation: Westpac must do whatever is necessary to ensure Part 2 is fully effective, especially regarding business outside New South Wales (s 13). This is an express operational duty to take administrative and practical steps required to give full effect to the statutory vesting and continuity provisions.
Duty to request revocation of Bank of Melbourne’s banking authority: Within three months following the succession day, Westpac must, by written notice to the Treasurer in accordance with s 9 of the Banking Act 1959 (Commonwealth), request revocation of the Bank of Melbourne’s authority to carry on banking business in Australia (s 14).
Fiscal duty subject to Treasurer’s direction: If the Treasurer requires it under s 16(2), Westpac must pay an amount in lieu of State duties or other imposts. Clause 16(3) makes clear the amount is to be determined by the Treasurer in accordance with such principles as he or she thinks appropriate.
Duties on registration authorities and registrars
Acceptance of certificates and updating registers: Where an asset of a kind is recorded in a register under State law, a responsible person or authority must accept a certificate by an authorised person as evidence that transfer requirements have been complied with, and must amend the register to reflect the Regulation’s effect on request (s 20(1)(c)-(d)). For land, the Registrar-General or other title officers are not required to enquire into vesting where the registered proprietor was the Bank of Melbourne immediately before the succession day (s 18(2)).
Duties on customers and counterparties
No new action required to stay contracts in force: Contracts, mandates, authorities and orders given to the Bank of Melbourne and subsisting on or after succession are taken as given to Westpac, and customers do not need to reissue them for continuity (s 12(2)). Counterparties with security or rights under instruments should treat the instrument as continuing to refer to Westpac (s 7).
Rights conferred or preserved
Substitution in legal proceedings: Westpac is substituted as a party for the Bank of Melbourne in pending proceedings and has the same rights as the Bank of Melbourne had (s 9(1)). Documentary evidence used for or against the Bank of Melbourne remains admissible for or against Westpac (s 9(2)).
Employee rights preserved: Employee terms and conditions, continuity of service, and accruing rights to leave and superannuation are preserved and not prejudiced by the transfer (s 10(a)-(e)).
Proprietary rights to land and charges preserved: Westpac is taken to be the registered proprietor or caveator of interests in land that were held by the Bank of Melbourne, with the same rights and remedies (s 18(1)). For company charges, the lodgment of a certificate with the Australian Securities Commission is taken to comply with the Corporations Law requirement in s 268(1) where Westpac becomes holder by virtue of the Regulation, subject to an agreed fee (s 19(1)-(2)).
Continuity of customer rights: Customer and depositor relationships, including rights of set-off, continue as if the relationship had always been between Westpac and the customer (s 12(1)).
Evidentiary and administrative presumptions
Conclusive certificates: Certificates issued by authorised persons under s 17 are conclusive evidence in all courts, tribunals and proceedings of the matters certified, except to the extent the contrary is proved (s 17(2)). A document purporting to be such a certificate is taken to be one unless the contrary is established (s 21).
Deeming of public documents: The public documents of the Bank of Melbourne are taken to be public documents used in Westpac’s ordinary business for purposes of the Evidence Act 1995 (s 22(1)).
Limits and non-waivers
Non-exemption from banking or corporations law obligations: The Regulation expressly does not exempt Westpac from provisions of any Act or statutory instrument relating to companies carrying on the business of banking (s 24(4)). Additionally, s 16(8) preserves certain fiscal liabilities payable to Commonwealth authorities.
Protective statements against breaches: Clause 24(2) lists consequences that the Regulation states do not occur by reason of the Regulation, including that nothing done by or under the Regulation places Westpac or others in breach of contract, places them in breach of NSW law, constitutes an event allowing termination of agreements, or releases sureties. Those subclauses operate as statutory clarifications of effect; they do not eliminate the need to check specific contracts and statutory obligations in particular cases.
Practical rights to operate under the Bank of Melbourne name
Westpac may operate under the specified business names, and may sign, issue or publish public documents or eligible negotiable instruments in the Bank of Melbourne name, through authorised officers (s 15(1), (4)). Clause 15(3) clarifies that "operating under a name" includes conduct that, but for the permission in s 15(1), would have required registration under the Business Names Act 1962.
Taken together, duties are primarily administrative for Westpac and registrars, while the Regulation confers rights of continuity and substitution so business, legal processes and employee relationships are preserved without re-formation. Certificates and authorised person designations replace many transactional formalities with administrative evidence and ministerial discretion.
Penalties and enforcement
The Regulation does not create an express schedule of criminal penalties, fines or civil penalty provisions specific to contraventions of its clauses. Its enforcement architecture is primarily administrative and evidentiary rather than punitive. The principal enforcement and effect mechanisms in the Regulation are as follows.
Conclusive and rebuttable certificates
Certificates signed by authorised persons are conclusive evidence: Clause 17(2) provides that a certificate under clause 17 is conclusive evidence of the matters certified, except to the extent the contrary is proved. This shifts evidentiary burden to any challenger, and makes compliance processes administratively robust in courts, tribunals and registries. Clause 21 further states that a document purporting to be a certificate is taken to be such a certificate unless the contrary is established. The Regulation therefore relies on the probative force of certificates rather than civil sanctioning measures.
Ministerial discretion and fiscal settlement
Treasurer’s fiscal control: The Treasurer may require a payment instead of State duties and other imposts under clause 16(2). The Treasurer determines the amount in his or her opinion and issues a certificate when satisfied that requirements have been complied with (s 16(3)-(5)). Clause 16(6) grants Westpac immunity from those State duties or imposts when a certificate under subclause (4) or (5) is given, thereby obviating further State claims of that kind. The mechanism is administrative: the Treasurer’s certificate concludes liability for State duties referred to in s 16(2), rather than imposing specified penalties.
Registry and Corporations Law compliance deemed satisfied
Company charges: Clause 19 treats s 268(1) of the Corporations Law as complied with if a certificate is lodged with the Australian Securities Commission and Westpac pays the agreed fee. This mechanism enforces compliance by providing a statutory route to meet Corporations Law formalities, rather than imposing penalties for non-compliance with those disclosure requirements.
No express civil or criminal penalties in this text
The Regulation does not expressly create contraventions constituting offences, monetary penalties or civil penalties for failure to do any particular act. Instead, compliance is driven by statutory presumptions and by the duties placed on Westpac to carry out the reorganisation (s 13), and by existing regulatory regimes under Commonwealth and State law which remain applicable (s 24(4)).
Regulatory oversight remains
The Regulation preserves the operation of other laws and regulators. Clause 24(4) expressly states nothing in the Regulation exempts Westpac from Acts or statutory instruments relating to companies carrying on the business of banking. This implies that standard enforcement machinery under banking regulation, corporations law, taxation law and other relevant statutes remains in place for conduct that falls within those regimes.
Risk allocation through deeming
Deeming provisions shift enforcement dynamics. Because land titles are deemed to have vested in Westpac (s 18(1)) and registrars are not required to enquire into vesting (s 18(2)), third parties and registries rely on statutory presumption rather than independent validation. If a dispute arises concerning the correctness of certificates or of the vesting, s 17(2) allows rebuttal, but the practical evidentiary starting point strongly favours the certificate holder.
Practical enforcement levers
Administrative measures are the expected enforcement levers: registrars amending registers on production of certificates, the Treasurer issuing fiscal certificates, and Commonwealth authorities accepting certificates for Corporations Law purposes. Actual remedies for wrongful issuance of certificates, negligent misstatements or fraud are not set out in this Regulation but would fall back on general law remedies such as actions for deceit, breach of statutory duty if any, or equitable relief, and on the criminal law where applicable.
In short, the Regulation relies on administrative instruments, statutory deeming, and evidentiary presumptions to enforce its effect. It does not itself prescribe penalties or sanctions for specific breaches, and it preserves the jurisdiction of other statutory regimes which retain their own enforcement powers.
How it interacts with other laws
The Regulation is drafted to operate alongside and to interact with several named statutory regimes. Its provisions create specific deeming and compliance mechanisms to align with existing registers, the Corporations Law and Commonwealth banking regulation. The principal interactions are as follows.
Interaction with the Bank Mergers Act 1996 (the Act)
The Regulation refers to the Act in its definitions, and clause 16(1) conditions the effect of Part 2 on compliance with requirements made under clause 16 or a Treasurer determination that no requirement is to be made. The Regulation is made under the Act and should be read as implementing the statutory merger framework provided by the Act. The Regulation does not negate or override any provision of the Act beyond what the enabling legislation contemplates.
Corporations Law and Australian Securities Commission
Clause 19 directly engages the Corporations Law by deeming s 268(1) of that law to have been complied with in respect of charges Westpac becomes holder of by virtue of this Regulation if a certificate is lodged with the Australian Securities Commission and an agreed fee is paid. Clause 19(2) allows the lodgment fee to be an amount agreed between Westpac and the ASC or the total amount otherwise prescribed, whichever is lesser. Clause 20(2) states that clause 20 does not affect the operation of the Corporations Law, indicating that the Regulation works in concert rather than in substitution for Corporations Law obligations.
Banking Act 1959 (Commonwealth)
Clause 14 requires Westpac, within three months following the succession day, to request revocation of the Bank of Melbourne’s banking authority in accordance with s 9 of the Banking Act 1959 (Commonwealth). This sets an express procedural interaction with the federal banking regulation regime and recognises federal licensing as a separate compliance layer.
Real Property Act 1900 and land registration
Clause 18 interacts with New South Wales land registration law by deeming Westpac to be the registered proprietor of any interest in land the Bank of Melbourne held immediately before succession, and by stating that registrars and persons registering or certifying title are not required to enquire into vesting where the registered proprietor was the Bank of Melbourne (s 18(1)-(2)). Clause 20(1) also requires registries to accept certificates to effect register amendments for other asset types.
Evidence Act 1995
Clause 22 declares that the Bank of Melbourne’s public documents are, for the purposes of ss 156 to 158 of the Evidence Act 1995, taken to be public documents used in Westpac’s ordinary business. This grants a statutory evidentiary continuity in courts and tribunals for historical documents and records.
Business Names Act 1962
Clause 15 interacts with the Business Names Act 1962 by permitting Westpac to operate in the State under the Bank of Melbourne names without being prevented from registering those names under the Business Names Act, and by treating the authorised use of a name as encompassing conduct that would otherwise have required registration (s 15(1)-(3)).
Other State Acts and registers
Clause 20(1) contemplates interaction with any State law that requires a register to be kept in respect of certain assets. It provides that such transfer requirements are taken to have been complied with by production of an authorised certificate, and directs the responsible person or authority to amend registers on request to reflect the Regulation’s effect. Clause 23 instructs that references in other Acts, regulations or instruments to the Bank of Melbourne or bodies listed in Schedule 1 are to be read, on or after the appointed day, as references to Westpac, unless context requires otherwise. This is an interpretative provision for continuity across State instruments.
Limitations and preservation of other laws
Clause 24(4) makes clear that nothing in the Regulation exempts Westpac from Acts or statutory instruments relating to companies carrying on the business of banking. Clause 16(8) preserves obligations to pay certain duties to Commonwealth bodies, including the Australian Securities Commission and the Registrar-General in respect of land dealings, thereby limiting the scope of any fiscal immunity created by State certificates.
Deeming vs. contractual consent
Clause 24(1) gives the Regulation effect despite anything in other instruments, and clause 24(3) states that where advice or consent of a person would be necessary to give effect, the advice is taken to have been obtained or the consent is taken to have been given. These are statutory devices to avoid bilateral hold-outs, but clause 24(2) also states that nothing done under the Regulation places parties in breach of contract, or releases sureties, so interaction with private law obligations must be read with these carve-outs in mind.
Overall, the Regulation is designed to be a surgical instrument that aligns statutory and registry frameworks so that assets, liabilities and corporate functions move from one entity to another without procedural friction. It relies on certificates, deeming, and statutory substitution to coordinate with Commonwealth and State registers and statutes, while expressly preserving the operation of existing banking, corporations and land law regimes where appropriate.
Amendment history
The text provided includes an explicit commencement date and the operative provisions of the Regulation as enacted. The Regulation commences on 3 May 1998 (s 2), which is identified as the succession day (s 3(1) definition). The enclosed text contains no express schedule of subsequent amendments, variations or repeals within the body of the instrument that has been provided.
What the provided text records:
Name and commencement: The instrument is titled the Bank Mergers (Bank of Melbourne) Regulation 1998 and commences on 3 May 1998 (s 1 and s 2).
No amendment clauses: The Regulation as presented does not include any later amendment clauses, transitional adjustments beyond those necessary for the single succession event, or express expiry or sunset clauses. There is no text within this Regulation indicating that it was itself amended or superseded.
Departmental or enabling Act references: The Regulation was made under the Bank Mergers Act 1996 (the Act), which it references in the definitions and whose mechanisms it implements. Any amendments to the Act after this Regulation was made could have implications for the operation of the Regulation, but such changes are not recorded within the Regulation text supplied.
How to read this in practice
Verify current status: Because the Regulation text provided does not include any recorded amendments, the reader should treat the reproduced instrument as the primary text as at its commencement. It is standard practice to confirm whether the Regulation has been amended, repealed, or otherwise affected by later instruments or legislative action. Such changes would appear in consolidated or reprinted versions authorised by the relevant State legislative publisher.
No included repeal or expiry: The Regulation contains no express repeal of other instruments, other than effecting the vesting and dissolution of the Bank of Melbourne by operation of the succession clauses. Schedule 1 lists previous bodies relevant to clause 23, further supporting the view that the instrument was crafted as a specific succession instrument rather than a general-purpose, enduring regulatory template.
Certificates and administrative closure: The Regulation foresees administrative closure of State impost obligations by Treasurer certificate (s 16(4)-(6)). If the Treasurer issues such certificate(s), those certificates act as administrative evidence that a fiscal requirement has been complied with or that none will be made. Any records of those certificates form part of the administrative record of the reorganisation and could be relevant to determining the financial and administrative outcome of the succession.
Because the provided Regulation is narrowly focused on a single corporate succession event, the amendment history in the instrument itself is minimal. Users requiring the current legal status or any subsequent amendments must consult the official consolidated legislation repository or government publications for any alterations since the commencement date. The text as provided should be treated as the original operative instrument for the specified succession event unless and until a later amendment is identified in authoritative sources.
Litigation history
The Regulation text supplied does not contain references to any judicial decisions, nor does it list litigation or case law that has interpreted or applied its provisions. The instrument itself is machinery for effecting a corporate succession and provides statutory presumptions and administrative devices such as certificates, deed-like translations of instruments, and registry instructions. These features can reduce the incidence of disputes by removing the need for multiple bilateral transfers and re-executions, but they also create particular points that could in principle attract litigation, such as contested certificates, disputes about whether specific assets were properly translated, or claims by third parties who assert different rights.
Potential litigation focal points, derived from the text rather than reported cases, include:
Challenging the correctness of an authorised person’s certificate: Clause 17(2) makes certificates conclusive evidence except to the extent the contrary is proved. A party asserting the contrary would need to bring evidence to rebut the certificate in court or tribunal.
Disputes about vesting of particular assets or liabilities: Clause 6 provides for automatic vesting of all assets and liabilities, but whether a particular item is an asset or liability of the Bank of Melbourne immediately before succession could be contested. The Regulation does not itself catalogue assets, leaving factual disputes to be determined in litigation where the certificate is challenged.
Employee rights and superannuation claims: Clause 10 preserves employee terms and benefits, but questions about superannuation fund entitlements, contributions or obligations that arise after succession could generate disputes between employees, fund managers, employers and regulators.
Land title and registry disputes: Clause 18(2) relieves registrars from enquiring into vesting. If a third party asserts fraud, mistake, or competing equitable interests in land, litigation could arise to determine whether the statutory deeming ought to be displaced by evidence of contrary title or equitable claim.
Corporations Law charge transfers: Clause 19 provides that lodgment of a certificate is taken to have complied with s 268(1) of the Corporations Law for charges that transfer by virtue of the Regulation. A challenge might arise about whether the certificate correctly identified the charges transferred or whether the fee arrangement was properly executed.
Third party contractual rights: Clause 24(2) states nothing done under the Regulation places Westpac or another person in breach of contract or otherwise makes any of them guilty of a civil wrong. Nevertheless, counterparties may seek declarations, damages or equitable relief where a contract contains specific anti-assignment clauses, termination triggers on change of control, or conditions precedent that they say have not been satisfied despite the deeming.
What the supplied instrument does not provide
No reported decisions in the text: The Regulation, as provided, contains no annotation of case law, no references to court decisions, and does not claim to summarise any litigation. The absence of litigation references in the instrument does not mean disputes have not occurred in practice, it only means the instrument itself does not include a litigation docket or a statutory note of a judicial interpretation.
For practitioners needing to know whether any of the Regulation’s provisions have been tested in litigation, or whether certificates issued under s 17 have been successfully challenged, it will be necessary to search judicial databases, legal reporting services and tribunal records. The instrument’s text identifies the likely legal flashpoints that would attract litigation, but it does not itself supply an account of any cases or outcomes.
Gotchas
This Regulation creates several practical traps for users who assume automaticism without checking the statutory details. The following are specific operational and legal "gotchas" grounded in the text.
Certificates are powerful but rebuttable, and the burden can be practical rather than legal
Clause 17(2) makes certificates conclusive evidence until the contrary is proved. While courts can admit contrary evidence, in practice challenges against a certificate will be uphill, time-consuming and potentially costly. Reliance on certificates by registries and counterparties limits the practical remedies available to third parties that later discover an error. Similarly, clause 21 takes a document purporting to be a certificate as one unless the contrary is established.
Authorised persons include Westpac officers
The definition of authorised person includes the chief executive officer of Westpac and the secretary of Westpac (s 3(1)). That gives internal Westpac officers the capacity to issue certificates that are conclusive in law under s 17(2). Practitioners should note the potential conflicts or perceptions of self-certification and ensure robust internal controls over the issuance and content of such certificates. The Regulation allows the Treasurer also to designate other persons by writing as authorised persons (s 3(1)(d)).
Business name use without registration
Clause 15(1) permits Westpac to operate under the Bank of Melbourne name without the usual registration formalities that otherwise would be imposed under the Business Names Act 1962. That means third parties encountering the Bank of Melbourne name should treat the name as used legitimately by Westpac. However, clause 15(2) does not prevent registration, so Westpac may still register the names. Tactically, third parties should require confirmation of the authority under which the name is used, particularly for negotiable instruments or where identity verification is essential.
Directors do not transfer with the business
Clause 11 states that persons holding office as directors or secretary of the Bank of Melbourne cease to hold office on and from the succession day and do not, by virtue only of the Regulation, become directors or secretaries of Westpac. If counterparties expect prior board approvals or specific corporate authorisations to continue, they must ensure the corporate governance step has been separately addressed. There is no automatic carry-over of corporate office-holding.
Employees transfer but contracts are not assigned in the private law sense
Clause 10 effects the practical transfer of employment, preserving continuity and entitlements, but it also expressly states it does not affect the employee’s contract of employment (s 10(a)). This can be read as preserving contractual rights even as employment is transferred by statute. Practitioners should be wary that employment law claims that rest on consent or assignment clauses may require separate attention, even though the Regulation preserves continuity.
Treasurer’s discretion on State duties
Clause 16 gives the Treasurer an unfettered-seeming discretion to require a monetary payment in lieu of State duties and other imposts and to determine the amount "in the opinion of the Treasurer" in accordance with such principles as the Treasurer thinks appropriate (s 16(2)-(3)). That creates an administrative uncertainty for Westpac about the quantum of State imposts, and negotiation with the Treasurer may be necessary. If a certificate is issued under s 16(4) or (5) stating compliance or that no requirement is to be made, Westpac obtains statutory immunity from State imposts of the kinds referred to in s 16(2) (s 16(6)). Timing and certainty around that certificate matter.
No express penalties or sanctioning regime in this text
The Regulation does not state fines, penalties or criminal offences for non-compliance with its procedures. That does not mean there are no consequences for non-compliance, but it does mean the script of enforcement is administrative and evidentiary. For example, failure to request revocation of the Bank of Melbourne’s banking authority within the three-month window may raise regulatory questions under the Commonwealth Banking Act, but the Regulation itself contains no express sanction.
Land registries and non-enquiry
Clause 18(2) relieves registrars and other title officers from enquiring into whether land has vested in Westpac where the Bank of Melbourne was the registered proprietor immediately before succession. This reduces friction, but it also means that a third party who later discovers a competing equitable claim to the land must displace strong statutory presumptions to attain relief.
Contracts with anti-assignment terms
Clause 24(1) provides that the Regulation has effect despite anything in any contract, deed, undertaking or other instrument. Clause 24(3) further declares that where consent or advice would be necessary, it is taken to have been obtained. These deeming devices mean anti-assignment clauses or consent requirements are statutorily overridden, but clause 24(2) also lists that nothing done by or under the Regulation places a party in breach of contract. In practice, this produces a legal tension requiring careful contractual review. Certain third parties may have termination rights triggered by a change in control that the Regulation seeks to neutralise, but private dispute risk remains if contractual language is ambiguous.
Corporations Law and Commonwealth interactions preserved
Clause 16(8) excludes from the State duty immunity amounts payable to the Australian Securities Commission under the Corporations Law and to the Registrar-General for land dealings. Clause 20(2) expressly states it does not affect the operation of the Corporations Law. Practitioners must therefore consider Commonwealth filing and fee obligations separately from State certificate-based immunities.
Records as admissible public documents
Clause 22 treats the Bank of Melbourne’s public documents as public documents for Westpac for Evidence Act purposes. This preserves historical records, but it also means records retained by Westpac can be used against Westpac in litigation. Counsel should be mindful that documentary evidence will not be rendered stale by the corporate succession.
In short, the main practical gotchas are concentrated on reliance on certificates (and the need to be able to rebut them), the scope of Treasurer discretion on fiscal matters, the self-certification capacity of Westpac officers, the implications for corporate office-holders and employment transfer mechanics, and the interplay with anti-assignment provisions and Commonwealth filing obligations. Each of these points demands careful document-level, registry-level and corporate governance checks when implementing or relying on the Regulation.
How to comply
To operationalise compliance with this Regulation, practitioners and corporate administrators should follow a sequence of discrete steps tied to the express obligations and administrative mechanisms in the text. Below is a practical checklist mapped to the clauses.
Identify and designate authorised persons
Confirm who is an authorised person under s 3(1). The Treasurer, the chief executive officer of Westpac and the secretary of Westpac are named. If additional persons are to be authorised, ensure the Treasurer makes written designations under s 3(1)(d). Document internal delegation and signature authorities for issuing certificates under s 17.
Prepare and control certificates
Prepare templates for certificates under s 17 that correctly state the matters required by that clause, including identification of translated assets and liabilities. Ensure internal controls and approvals inside Westpac before issuing certificates, because s 17(2) makes certificates conclusive evidence unless rebutted. Retain signed originals, maintain logs and back up documentary evidence to support factual correctness if a certificate is challenged.
Identify assets, liabilities and translated instruments
Create an inventory, as at the succession day, of all assets, liabilities, instruments, contracts, securities and registers where the Bank of Melbourne is a party, beneficiary or registered holder. For each item, note whether it is a translated instrument, translated asset or translated liability as defined in s 3 and s 6. Where collateral or securities are concerned, map the instruments that secure payment or protect creditors.
Lodge certificates with registries
For company charges: lodge a copy of the authorised certificate with the Australian Securities Commission consistent with s 19(1) and pay the fee agreed with the ASC or the amount prescribed under the Corporations Law regulations, whichever is lesser (s 19(2)). Retain proof of lodgment and fee payment.
For land and title: where interests in land are involved, ensure the Registrar-General and relevant title offices are notified as necessary. Clause 18 deems Westpac to be registered proprietor, but administrative practice may require filing of notifications or certificates with the Registrar-General or other registrars to effect practical updates.
For other asset registers: where a State law requires registers to be kept, lodge the authorised certificate with the responsible person or authority and request the necessary amendments to register entries (s 20(1)(c)-(d)). Keep a record of the authority’s response and the register amendments.
Notify customers, counterparties and employees
Customers and depositors: communicate the succession to customers and depositors, explaining that relationships, mandates and standing instructions continue as between Westpac and the customer by virtue of s 12(1)-(2). Provide any required identity or authority confirmations for large or sensitive accounts.
Employees: ensure payroll, superannuation contribution, leave accruals and records are transferred and maintained to reflect continuity of service per s 10. Update employment files to reflect Westpac as the employer and confirm that entitlements remain preserved. Make any regulatory filings required by employment or industrial law for the transfer.
Corporate governance steps
Update corporate registers and boards: ensure that directors and secretaries of the Bank of Melbourne are recorded as having ceased office in the relevant corporate records, and that Westpac’s board documents reflect the succession. Clause 11 makes clear that former Bank of Melbourne directors do not become Westpac directors by virtue of the Regulation.
Business name and negotiable instruments
Implement use of the Bank of Melbourne name under s 15(1) where required. If Westpac wishes, proceed with registration of the business names under the Business Names Act 1962, noting s 15(2) permits registration but is not required for operation under the permitted names. For negotiable instruments or public documents, ensure authorised officers sign in the permitted business name as allowed by s 15(4).
Treasurer and fiscal matters
Engage with the Treasurer concerning any requirement under clause 16. If the Treasurer indicates a payment in lieu of State duties is required, prepare to negotiate principles and quantum, pay the required amount, and obtain the Treasurer’s certificate under s 16(4) stating the requirement has been complied with. If the Treasurer determines that no requirement will be made, obtain the certificate under s 16(5) stating that no requirement is to be made. Retain certified copies; s 16(7) makes a certified copy conclusive evidence of the matters certified.
Commonwealth filings
Request revocation of Bank of Melbourne’s banking authority as required by s 14, in accordance with s 9 of the Commonwealth Banking Act within three months following the succession day. Ensure any filings or notifications required by the Corporations Law, the Banking Act or other Commonwealth statutes are completed in a timely manner, recognising clause 16(8) excludes certain Commonwealth imposts from the State certificate immunity.
Records and evidentiary preservation
Keep full documentary records of the inventory, certificates issued, lodgments, communications to counterparties and employees, and Treasurer certificates. Clause 22 treats the Bank of Melbourne’s public documents as public documents of Westpac for Evidence Act purposes, so maintain chain-of-custody records for evidence admissibility.
Review contracts and potential termination triggers
Conduct a contractual review for significant contracts with change-of-control or anti-assignment clauses, notice and consent requirements, and guarantees. Although s 24 seeks to make the Regulation effective despite such clauses and takes consents as given (s 24(1) and (3)), the practical risk of counterparty disputes remains, and preemptive communication or transitional arrangements can limit dispute risk.
Legal contingency and insurance
Assess the need for indemnities, warranties or insurance concerning unknown or contingent liabilities that may have been transferred. The Regulation transfers liabilities as a matter of law (s 6(1)(b)), but Westpac may wish to ensure contractual protections or insurance covers pre-existing contingent risks where feasible.
Training and operational updates
Update bank operating systems, account signatory lists, collateral management platforms, and staff training to reflect the succession and the permitted business names. Ensure staff understand the effect on customer instructions, set-off rights, and the handling of translated instruments.
Monitor for challenges
Be vigilant for any third party seeking to rebut certificates or asserting competing claims. The statute allows rebuttal evidence. Maintain a legal surveillance and response plan for potential disputes over title, employee entitlements, superannuation, or contractual claims.
Following these steps will align operational activities with the Regulation’s provisions and will minimise administrative friction, registry delays and dispute risks. The Regulation streamlines many technical requirements, but it also requires careful documentary practices, controlled certificate issuance, and proactive engagement with the Treasurer and registries to secure the intended legal and administrative outcomes.
eligible negotiable instrument has the same meaning as it has in the Corporations Law.
instrument includes a document and an oral agreement.
interest, in relation to land, includes:
(a) a legal or equitable estate or interest in the land, or
(b) a right, power or privilege over, or in relation to, the land.
liability includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).
public document has the same meaning as it has in the Corporations Law.
secretary of Westpac means the person holding that office or a person acting from time to time in that office.
succession day means the day on which this Regulation commences.
the Act means the Bank Mergers Act 1996.
translated asset means an asset referred to in clause 6.
translated instrument, in relation to the Bank of Melbourne, means an instrument (including a legislative instrument other than this Regulation) subsisting immediately before the succession day:
(a) to which the Bank of Melbourne is a party, or
(b) that was given to, by or in favour of, the Bank of Melbourne, or
(c) that refers to the Bank of Melbourne, or
(d) under which money is, or may become, payable or other property is, or may become, liable to be transferred, to or by the Bank of Melbourne.
translated liability means a liability referred to in clause 6.
Westpac means Westpac Banking Corporation (ARBN 007 457 141).
(2) Where reference is made in this Regulation to anything done for a purpose connected with, or arising out of, the operation or effect of this Regulation, that reference is taken to include any transaction entered into, or any instrument or document made, executed, lodged or given, for that purpose.
4 Notes
4 Notes
4 Notes
The explanatory note and table of contents do not form part of this Regulation.
Part 2 Bank reorganisation
Part 2 Bank reorganisation
Part 2 Bank reorganisation
5 Consequence of succession
5 Consequence of succession
5 Consequence of succession
(1) On the succession day, in accordance with the principle of succession in law:
(a) Westpac becomes the successor in law of the Bank of Melbourne and is for all purposes a continuation of and the same legal entity as the Bank of Melbourne, and
(b) the Bank of Melbourne is liquidated and dissolved.
(2) Nothing in any other provision of this Part limits the operation of this clause.
6 Assets and liabilities
6 Assets and liabilities
6 Assets and liabilities
(1) On the succession day, in accordance with the principle of succession in law:
(a) all assets of the Bank of Melbourne, wherever located, vest in, or are otherwise available for the use of, Westpac without the need for any conveyance, transfer, assignment or assurance and without the need for any prior notice or further act, and
(b) all liabilities of the Bank of Melbourne, wherever located, become liabilities of Westpac without the need for any prior notice or further act.
(2) On and from the succession day Westpac may execute an instrument discharging, surrendering, transferring or otherwise dealing with a transferred asset or liability in its own name, in the name of the Bank of Melbourne or the name of any predecessor in title to the Bank of Melbourne.
7 Translated instruments
7 Translated instruments
7 Translated instruments
(1) Each translated instrument in respect of the Bank of Melbourne continues to have effect, according to its tenor, on and after the succession day, as if a reference in the instrument to the Bank of Melbourne were a reference to Westpac.
(2) Without limiting subclause (1), an instrument securing the payment of moneys owing to the Bank of Melbourne is taken to secure moneys owing to Westpac for the purposes of determining liability for stamp duty in respect of that instrument or any collateral instrument.
8 Places of business
8 Places of business
8 Places of business
On and after the succession day, a place that, immediately before that day, was a place of business of the Bank of Melbourne is taken to be a place of business for Westpac.
9 Legal proceedings and evidence
9 Legal proceedings and evidence
9 Legal proceedings and evidence
(1) Where, immediately before the succession day, proceedings (including arbitration proceedings) to which the Bank of Melbourne was a party were pending or existing in any court or tribunal, Westpac is, on that day, substituted for the Bank of Melbourne as a party to the proceedings and has the same rights in the proceedings as the Bank of Melbourne had.
(2) Where, before the succession day, documentary or other evidence would have been admissible for or against the interests of the Bank of Melbourne, that evidence is admissible, on or at any time after that day, for or against the interests of Westpac.
10 Employees
10 Employees
10 Employees
On the succession day each employee of the Bank of Melbourne ceases to be employed by the Bank of Melbourne and becomes an employee of Westpac on the same terms and conditions as those that applied immediately before the succession day and this section does not:
(a) affect his or her contract of employment, or
(b) interrupt his or her continuity of service, or
(c) prejudice his or her existing or accruing rights to recreation leave, sick leave, superannuation or long service leave or any other employee entitlement existing immediately before the succession day, or
(d) affect rights or liabilities under any provident, benefit, superannuation or retirement fund or scheme relating to employees of the Bank of Melbourne, or
(e) constitute a retrenchment or redundancy or give rise to any right of the employee to receive any payment or other benefit.
11 Directors
11 Directors
11 Directors
A person holding office as a director or secretary of the Bank of Melbourne immediately before the succession day ceases to hold office on and from the succession day and is not by virtue only of this Regulation a director or secretary of Westpac.
12 Relationships with customers and depositors
12 Relationships with customers and depositors
12 Relationships with customers and depositors
(1) The relationship between the Bank of Melbourne and a customer or depositor at an office or branch or agency of the Bank of Melbourne is, on and after the succession day, between Westpac and that customer or depositor, and gives rise to the same rights and duties (including rights of set-off) as would have existed before that day if that relationship had always been between Westpac and the customer or depositor.
(2) Any instruction, order, direction, mandate or authority given by that customer or depositor to the Bank of Melbourne and subsisting on or given after the succession day is, unless and until revoked or cancelled, taken to have been given to Westpac.
(3) Any information held immediately before the succession day by the Bank of Melbourne relating to a customer or depositor of the Bank of Melbourne at that time is available to and may be used by Westpac on and after the succession day.
13 Westpac to do what is necessary to carry out reorganisation
13 Westpac to do what is necessary to carry out reorganisation
13 Westpac to do what is necessary to carry out reorganisation
Westpac must do whatever is necessary to ensure that this Part is fully effective, particularly in relation to its business outside New South Wales, whether within or outside Australia.
14 Revocation of banking authority
14 Revocation of banking authority
14 Revocation of banking authority
Within three months following the succession day, Westpac must by notice in writing to the Treasurer in accordance with section 9 of the Banking Act 1959 of the Commonwealth request that the authority to carry on banking business in Australia granted to the Bank of Melbourne be revoked.
15 Business names and other names
15 Business names and other names
15 Business names and other names
(1) Westpac may, in addition to any other name it is entitled to use, operate in this State under the name “Bank of Melbourne” or “Bank of Melbourne Limited (ACN 007 270 448)” (the permitted business names).
(2) This clause does not prevent Westpac from registering any of the permitted business names, or any other name, under the Business Names Act 1962.
(3) In this clause, a reference to operating under a name includes a reference to engaging in any conduct in respect of which, for the purpose of the Business Names Act 1962, that name would (but for subclause (1)) have been required to be registered.
(4) An officer or employee of Westpac may, on behalf of Westpac, sign, issue or publish, or authorise the signing, issuing or publication, of a public document or eligible negotiable instrument of Westpac in the name of “Bank of Melbourne Limited (ACN 007 270 448)” or “Bank of Melbourne Ltd (ACN 007 270 448)”.
Part 3 Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
16 Payment of an amount instead of State duties or other imposts
16 Payment of an amount instead of State duties or other imposts
16 Payment of an amount instead of State duties or other imposts
(1) Despite any other provision of this Regulation, Part 2 does not have effect unless any requirement made under this clause has been complied with or the Treasurer determines that no requirement is to be made. The Treasurer may issue a certificate to that effect under subclause (4) or (5).
(2) The Treasurer may require Westpac to pay to the Treasurer instead of all duties, taxes, charges, rates or other imposts for which Westpac or the Bank of Melbourne would be liable under the law of this State as a result of, or in connection with, the merger of the Bank of Melbourne with Westpac an amount that is, in the opinion of the Treasurer, proper in the circumstances.
(3) The amount payable to the Treasurer is to be determined by the Treasurer in accordance with such principles as the Treasurer thinks appropriate.
(4) The Treasurer must, when satisfied that a requirement under this clause has been complied with, give Westpac a certificate stating that the requirement has been complied with.
(5) If the Treasurer determines that no requirement will be made under this clause, the Treasurer must give Westpac a certificate stating that no requirement is to be made.
(6) If a certificate is given under subclause (4) or (5), Westpac is not liable for any duties, taxes, charges, rates or other imposts of a kind referred to in subclause (2), despite the provisions of any Act relating to the payment of duties, taxes, charges, rates or other imposts.
(7) A copy of a certificate under this clause, certified as such by the chief executive officer of Westpac, or a person authorised to do so by the chief executive officer, is for all purposes and in all courts, tribunals and proceedings, conclusive evidence of the matters certified.
(8) This clause does not apply to any duties, taxes, charges, rates or other imposts:
(a) payable to the Australian Securities Commission under the Corporations Law, Corporations Regulations, ASC Law or ASC Regulations, or
(b) payable to the Registrar-General in respect of any act, dealing or other transaction relating to land.
17 Certificates evidencing operation of Regulation
17 Certificates evidencing operation of Regulation
17 Certificates evidencing operation of Regulation
(1) An authorised person may, by certificate signed by that person, certify any matter in relation to the operation or effect of this Regulation and, in particular, may certify that:
(a) a specified matter or thing relevant to Westpac is an aspect of the operation or effect of this Regulation, or
(b) a specified thing was done for a purpose connected with, or arising out of, the operation or effect of this Regulation in relation to Westpac, or
(c) a specified asset of the Bank of Melbourne has become a translated asset of Westpac, or
(d) a specified liability of the Bank of Melbourne has become a translated liability of Westpac.
(2) For all purposes and in all courts, tribunals and proceedings, a certificate under subclause (1) is conclusive evidence of the matters certified, except to the extent that the contrary is proved.
18 Interests in land
18 Interests in land
18 Interests in land
(1) Without prejudice to the generality of this Regulation and despite anything to the contrary in any other Act or law, if, immediately before the succession day, the Bank of Melbourne is, or is to be taken to be, the registered proprietor of an interest in land under the Real Property Act 1900, on and after the succession day:
(a) Westpac is to be taken to be the registered proprietor of that interest in land or the caveator of the registrable interest, as the case may be, and
(b) Westpac has the same rights and remedies in respect of that interest as the Bank of Melbourne had.
(2) No person dealing with Westpac (in any capacity at all), nor the Registrar-General, nor any other person registering or certifying title to land or having the power or duty to examine or receive evidence as to title to
This is an opening excerpt, not the complete document.