115Replacement of lost or destroyed cheque

#### 115 Replacement of lost or destroyed cheque (1) Where: (a) a cheque (in this section referred to as the original cheque) is lost or destroyed; and (b) the original cheque had not, at the time of its loss or destruction, been presented for payment or discharged; a person (in this section referred to as the former holder) who was the holder of, or otherwise lawfully in possession of, the original cheque at the time of its loss or destruction may, by notice in writing given to the drawer of the original cheque, request the drawer to give the former holder a replacement cheque to the same tenor as the original cheque. (2) The notice is not effective for the purposes of this section unless it contains sufficient particulars of the original cheque to enable the drawer to: (a) identify the original cheque with reasonable certainty; and (b) draw a replacement cheque to the same tenor as the original cheque. (3) The drawer may, by notice in writing given to the former holder within 14 days after the day on which the notice under subsection (1) is given to the drawer, request the former holder to give the drawer an indemnity in respect of any loss and expenses that the drawer may reasonably incur by reason of the drawing of a replacement cheque to the same tenor as the original cheque, and may also request the former holder to provide adequate security for the indemnity. (4) The drawer shall: (a) in a case where the drawer requests the former holder, by notice under subsection (3), to give the drawer an indemnity and also to provide security for the indemnity—within 14 days after the day on which the indemnity is given to the drawer or the day on which the security is provided, whichever last occurs; (b) in a case where the drawer requests the former holder, by notice under subsection (3), to give the drawer an indemnity, but does not also request the former holder to provide security for the indemnity—within 14 days after the day on which the indemnity is given to the drawer; or (c) in any other case—within 14 days after the day on which the notice under subsection (1) is given to the drawer; draw a replacement cheque to the same tenor as the original cheque and give the replacement cheque to the former holder. (5) Where the original cheque had been indorsed before its loss or destruction, the former holder may give the replacement cheque to the indorser and request the indorser, by notice in writing, to indorse the replacement cheque to the same tenor as the indorser’s indorsement of the original cheque. (6) The indorser may, by notice in writing given to the former holder within 14 days after the day on which the notice under subsection (5) is given to the indorser, request the former holder to give the indorser an indemnity in respect of any loss and expenses that the indorser may reasonably incur by reason of the indorsing of the cheque to the same tenor as the indorser’s indorsement of the original cheque, and may also request the former holder to provide adequate security for the indemnity. (7) The indorser shall: (a) in a case where the indorser requests the former holder, by notice under subsection (6), to give the indorser an indemnity and also to provide security for the indemnity—within 14 days after the day on which the indemnity is given to the indorser or the day on which the security is provided, whichever last occurs; (b) in a case where the indorser requests the former holder, by notice under subsection (6), to give the indorser an indemnity, but does not also request the former holder to provide security for the indemnity—within 14 days after the day on which the indemnity is given to the indorser; or (c) in any other case—within 14 days after the day on which the notice under subsection (5) is given to the indorser; indorse the replacement cheque to the same tenor as the indorser’s indorsement of the original cheque and give the replacement cheque so indorsed to the former holder. (8) Where the drawer or indorser refuses or fails to comply with subsection (4) or (7), as the case requires, the former holder may apply to a court of competent jurisdiction for an order directing: (a) the drawer to draw a replacement cheque to the same tenor as the original cheque and give the replacement cheque to the former holder; or (b) the indorser to indorse the replacement cheque to the same tenor as the indorser’s indorsement of the original cheque and give the replacement cheque so indorsed to the former holder; as the case may be. (9) Where an application is made to a court of competent jurisdiction for an order of a kind referred to in subsection (8), the court may make the order on such terms and conditions as it considers just and equitable. (10) In this section: > court of competent jurisdiction, in relation to an application for an order of a kind referred to in subsection (8) in relation to a replacement cheque, includes an inferior court of a State or Territory that has jurisdiction for the recovery of debts up to an amount not less than the sum (if any) that is, or it is claimed should be, ordered to be paid by the replacement cheque. > inferior court means: (a) a County Court, District Court or Local Court; or (b) a court of summary jurisdiction exercising civil jurisdiction.