Part 1
Preliminary
Part 1 Preliminary
Part 1 Preliminary
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New South Wales act
This Act governs co‑operative housing and Starr‑Bowkett societies: it preserves existing societies, but (by s 2A) stops formation or registration of new societies and prevents Starr‑Bowkett societies admitting new members. It sets detailed governance and rule requirements, merger and transfer procedures, Registrar powers to direct transfers and apply modified Corporations provisions, and winding‑up options. Members, officers, registrars and creditors must follow new registration, reporting and transfer rules and face penalties for non‑compliance.
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Direct links to the current provisions in Co-operative Housing and Starr-Bowkett Societies Act 1998.
Part 1 Preliminary
Division 1 Introductory
1 Name of Act
This Act is the Co-operative Housing and Starr-Bowkett Societies Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
2A Prohibition on formation or registration of new societies and admission of new members
Despite any other provision of this Act—
(a) a society cannot be formed or registered on or after the commencement of this section, and
(b) a Starr-Bowkett society cannot admit any person to membership on or after that commencement.
s 2A: Ins 2018 No 79, Sch 2.1 [1].
Division 2 Interpretation
3 Definitions
(1) In this Act—
accounting records include—
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry, and
(b) documents and records that record such entries, and
(c) such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up.
accounting standard has the meaning given by section 9 of the Corporations Act.
accounts means statements of financial performance and statements of financial position, and includes statements, reports and notes (other than auditors’ reports or directors’ reports) attached to or intended to be read with any of those statements.
advertisement includes matter that is not in writing but because of the form or context in which it appears conveys a message.
affairs, in relation to a body corporate, has the meaning given by section 53 of the Corporations Act.
approved form means a form approved by the Registrar.
association means a body registered as an association under this Act.
bank means—
(a) a bank as defined by section 5 of the Banking Act 1959 of the Commonwealth, or
(b) a bank constituted under a law of a State.
board, in relation to a co-operative housing body, means the board of directors of the body.
body includes an entity.
body corporate means any body corporate whether formed or incorporated within or outside this State, but does not include—
(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown, or
(b) a corporation sole.
borrow means to obtain financial accommodation.
certificate of confirmation has the meaning given by section 150 (Definitions).
company means a company incorporated, or taken to be incorporated, under the Corporations Act.
consolidated accounts, in relation to a co-operative housing body, means all of the following—
(a) a consolidated statement of financial performance that section 129 (Group accounts) requires to be made out in relation to a financial year of the body,
(b) a consolidated statement of financial position that section 129 (Group accounts) requires to be made out in relation to the financial year,
(c) statements, reports and notes (other than a directors’ report) attached to, or intended to be read with, that consolidated statement of financial performance or consolidated statement of financial position.
co-operative housing body means—
(a) a society, or
(b) an association.
co-operative housing society means a body registered under this Act as a co-operative housing society.
Corporations Act means the Corporations Act 2001 of the Commonwealth.
Court means the Supreme Court, or a Supreme Court Judge, of this State.
director has the meaning given by section 5.
economic entity has the meaning given by section 5A.
entity has the meaning given by section 5A.
executive officer, in relation to a co-operative housing body or entity, means a person (by whatever name called) who is concerned, or takes part, in the management of the body or entity.
expert, in relation to a matter, means an independent person whose profession or reputation gives authority to a statement made by the person in relation to the matter.
financial institution means a building society or credit union under the financial institutions legislation.
financial institutions legislation has the same meaning as in the AFIC (NSW) Code.
friendly society means a friendly society under the Friendly Societies Act 1989.
group means an economic entity of which a co-operative housing body is a part.
group accounts, in relation to a holding society, means a set of consolidated accounts for the group in relation to which the society is the holding society.
holding body corporate means a body corporate that is the holding body corporate of another body corporate.
holding society has the meaning given by section 7.
inspector means a person authorised under section 30 (Inspectors).
national business names register has the meaning given by the Corporations Act.
officer has the meaning given by section 9 (Interpretation—meaning of “officer”).
profit or loss means—
(a) in relation to an entity—the profit or loss resulting from operations of the entity, and
(b) in relation to 2 or more entities or an economic entity constituted by 2 or more entities—the profit or loss resulting from operations of those entities.
registered company auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Act.
Registrar—see section 47A.
related body corporate has the meaning given by section 10.
securities has the meaning given by section 92 of the Corporations Act.
services corporation means a body corporate declared to be a services corporation under section 13.
share means a share in the share capital of a body corporate.
society means a co-operative housing society or a Starr-Bowkett society.
standard means a standard that is continued in force under clause 21 of Schedule 5.
Starr-Bowkett society means a body registered under this Act as a Starr-Bowkett society.
State means a State or Territory.
subsidiary has the meaning given by section 11.
transferee society has the meaning given by section 150 (Definitions).
transferor society has the meaning given by section 150 (Definitions).
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Schedule 1 (General interpretative provisions) has effect.
(3) Notes in the text of this Act do not form part of this Act.
(4) A reference in this Act to a provision of the Corporations Act that is applied by or under this Act (or a part of this Act) is a reference to that provision to the extent that it is declared to apply to a matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 as a law of this State.
s 3: Am 1999 No 2, Sch 4 [3] [4]; 2000 No 93, Sch 1.5 [1]; 2001 No 34, Sch 4.11 [1]–[8]; 2001 No 56, Sch 2.11 [1] [2]; 2008 No 23, Sch 3.14 [1]; 2010 No 19, Sch 3.24 [1]; 2016 No 27, Sch 1.9 [1] [2].
4 Interpretation—meaning of “associate”
(1) This section applies for the purposes of this Act other than section 103 (Financial accommodation to directors and associates).
(2) A person is an associate of another, or is associated with another, if—
(a) they are partners, or
(b) one is a spouse, de facto partner, parent or child of the other, or
(c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust, or
(d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body or entity, or
(e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body or entity, or
(f) they are related bodies corporate, or
(g) a relationship of a prescribed kind exists between them, or
(h) a chain of relationships can be traced between them under any one or more of the above paragraphs.
Note.
“De facto partner” is defined in section 21C of the Interpretation Act 1987.
s 4: Am 2008 No 23, Sch 3.14 [2]; 2010 No 19, Sch 3.24 [2].
5 Interpretation—meaning of “director”
(1) Subject to subsection (2), for the purposes of this Act, a reference to director, in relation to a body corporate, includes a reference to—
(a) a person occupying or acting in the position of director of the body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position, and
(b) a person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, and
(c) in the case of a body corporate incorporated outside Australia—
(i) a member of the body’s board, and
(ii) a person occupying or acting in the position of member of the body’s board, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position, and
(iii) a person in accordance with whose directions or instructions the members of the body’s board are accustomed to act.
(2) A person is not to be regarded as a person in accordance with whose directions or instructions—
(a) a body corporate’s directors, or
(b) the members of the board of a body corporate incorporated outside Australia,
are accustomed to act merely because the directors or members act on advice given by the person in the proper performance of the functions attaching to—
(c) the person’s professional capacity, or
(d) the person’s business relationship with the directors, the members of the board or the body.
5A Interpretation—meaning of “economic entity” and “entity”
If an accounting standard defines the term economic entity or entity the definition in the accounting standard has effect for the purposes of this Act. Otherwise, the term has the meaning prescribed by the regulations.
Note.
Accounting Standard AASB 1024:Consolidated Accounts defines economic entity to mean “a group of entities comprising the parent entity and each of its subsidiaries” and defines entity to mean “any legal, administrative or fiduciary arrangements, organisational structure or other party (including a person) having the capacity to deploy scarce resources in order to achieve objectives”.
s 5A: Ins 2000 No 93, Sch 1.5 [2].
6 Interpretation—reference to a holding body corporate
A reference in this Act to the holding body corporate of another body corporate is a reference to a body corporate of which the other body corporate is a subsidiary.
7 Interpretation—meaning of “holding society”
A society is a holding society if the society—
(a) controlled another entity during all or part of a financial year of the society, or
(b) controlled another entity at the end of a financial year of the society.
8 Interpretation—meaning of “making a decision”
A reference in this Act to the making of a decision includes a reference to—
(a) making, suspending, revoking or refusing to make an order or determination, or
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, or
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, or
(d) imposing a condition or restriction, or
(e) making a declaration, demand or requirement, or
(f) retaining, or refusing to deliver up, an article, or
(g) doing or refusing to do anything else.
9 Interpretation—meaning of “officer”
(1) Subject to subsection (2), for the purposes of this Act, officer, in relation to a body corporate or entity, includes—
(a) a director, secretary, executive officer or employee of the body or entity, and
(b) a receiver and manager, appointed under a power contained in an instrument, of property of the body or entity, and
(c) an official manager, or deputy official manager, of the body or entity, and
(d) a liquidator of the body or entity appointed in a voluntary winding-up of the body or entity, and
(e) a trustee or other person administering a compromise or arrangement made between the body or entity and other persons.
(2) None of the following is an officer of the body corporate or entity—
(a) a receiver who is not also a manager,
(b) a receiver and manager appointed by a court,
(c) a liquidator appointed by a court.
10 Interpretation—meaning of “related body corporate”
If a body corporate is—
(a) the holding body corporate of another body corporate, or
(b) a subsidiary of another body corporate, or
(c) a subsidiary of the holding body corporate of another body corporate,
the first body corporate and the other body corporate are related to each other.
11 Interpretation—meaning of “subsidiary”
(1) Subject to subsection (5), a body corporate is a subsidiary of a co-operative housing body if—
(a) the co-operative housing body—
(i) controls the composition of the body corporate’s board of directors, or
(ii) is in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the body corporate, or
(iii) holds more than 50% of the issued share capital of the body corporate (other than any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital), or
(b) the body corporate is a subsidiary of a body corporate that is a subsidiary of the co-operative housing body (including a body corporate that is a subsidiary of the co-operative housing body by another application of this paragraph).
(2) The composition of a body corporate’s board of directors is controlled by a co-operative housing body if the co-operative housing body can appoint or remove all or a majority of the directors by the exercise of a power exercisable with or without the consent or concurrence of another person.
(3) For the purposes of subsection (2), a co-operative housing body is taken to have power to make an appointment of directors if—
(a) a person cannot be appointed as director without the exercise of such a power by the co-operative housing body in the person’s favour, or
(b) a person’s appointment as a director follows necessarily from the person being a director or other officer of the co-operative housing body.
(4) Subsection (2) does not limit by implication the circumstances in which the composition of a body corporate’s board of directors is taken to be controlled by a co-operative housing body.
(5) In determining whether a body corporate is a subsidiary of a co-operative housing body—
(a) any shares held or power exercisable by the co-operative housing body in a fiduciary capacity must be treated as not held or exercisable by it, and
(b) subject to paragraphs (c) and (d), any shares held or power exercisable—
(i) by any person as a nominee for the co-operative housing body, or
(ii) by, or by a nominee for, a subsidiary of the co-operative housing body (other than a subsidiary that is concerned only in a fiduciary capacity), and
must be treated as held or exercisable by the co-operative housing body, and
(c) any shares held or power exercisable by a person under a debenture, or a trust deed for securing the issue of debentures, must be disregarded, and
(d) any shares held or power exercisable by, or by a nominee for, the co-operative housing body or its subsidiary merely by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with providing financial accommodation must be disregarded.
(6) If it is relevant to determine for the purposes of this Act whether a body corporate is a subsidiary of another body corporate that is not a co-operative housing body and subsection (1) does not apply, the first body corporate is a subsidiary of the other body corporate if it would be such a subsidiary under the Corporations Act.
s 11: Am 2001 No 34, Sch 4.11 [9].
12 Interpretation—when one entity controls another
(1) For the purposes of Divisions 4 (Accounts) and 5 (Audit) of Part 4 (Management), an entity controls another entity if the entity is a subsidiary of the first entity.
(2) Despite subsection (1), a regulation may make provision for determining, for the purposes of those Divisions as they apply in relation to a society in relation to prescribed financial years, whether or not an entity controls another entity.
(3) (Repealed)
s 12: Am 2016 No 27, Sch 1.9 [3].
13 Services corporations
The Registrar may, by Gazette notice, declare a body corporate that provides or proposes to provide financial or other services to societies to enable them to further their objects to be a services corporation.
Division 3 Operation of Act
14 Act binds the Crown
(1) This Act binds the Crown in right of this State and, so far as the legislative power of the Legislature of this State permits, the Crown in all its other capacities.
(2) Nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.
Division 4 Application of Corporations Act to co-operative housing bodies
pt 1, div 4: Subst 2001 No 34, Sch 4.11 [10].
15 Definition
In this Division—
excluded Corporations legislation provision means any provision of the Corporations legislation that does not apply to a co-operative housing body or its securities as a law of the Commonwealth.
s 15: Subst 2001 No 34, Sch 4.11 [10].
16 Excluded matter
(1) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act in relation to the whole of the Corporations legislation other than to the extent specified by this section—
(a) co-operative housing bodies,
(b) securities of such bodies.
Note.
This section ensures that neither the Corporations Act nor Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth will apply to co-operative housing bodies, other than to the extent specified in this section. Section 5F of the Corporations Act provides that if a State law declares a matter to be an excluded matter in relation to the whole of the Corporations legislation other than to a specified extent, then that legislation will not apply, except to the specified extent, in relation to that matter in the State concerned. However, other provisions of this Act apply certain provisions of the Corporations legislation to co-operatives as laws of this State.
(2) Subsection (1) does not exclude the application of the following provisions of the Corporations legislation to co-operative housing bodies and the securities of such bodies to the extent they would otherwise be applicable to such bodies and securities—
(a) provisions applying to, or about, the following—
(i) bodies,
(ii) bodies corporate,
(iii) disclosing entities,
(iv) eligible bodies,
(v) persons,
(vi) securities, including securities of a particular type,
(vii) securities, including securities of a particular type (for example, shares or debentures) of a body corporate,
(b) provisions applying to or about bodies or bodies corporate included in the official list of any prescribed financial market (including provisions of Chapter 6 applying to or about a company as defined for that Chapter),
(c) Chapter 2L (Debentures),
(d) Chapter 6D (Fundraising),
(e) Part 7.10 (Market misconduct and other prohibited conduct relating to financial products and financial services),
(f) provisions—
(i) about the interpretation of a provision mentioned in paragraphs (a)–(e) (non-excluded Corporations Act provision), including a provision defining a word used in the non-excluded Corporations Act provision, or
(ii) vesting power in the Australian Securities and Investments Commission, but only to the extent that they vest power for the purposes of a non-excluded Corporations Act provision, or
(iii) empowering a court to make an order (including an order curing a procedural irregularity), but only to the extent that they empower the court to make an order for the purposes of a non-excluded Corporations Act provision, or
(iv) otherwise about the administration of a non-excluded Corporations Act provision.
(3) The expressions used in subsection (2) (a), (b) and (f) have the meanings given by the Corporations Act.
s 16: Am 2000 No 93, Sch 1.5 [3]. Subst 2001 No 34, Sch 4.11 [10]. Am 2002 No 26, Sch 2.1 [1] [2].
17 Applying the Corporations legislation to co-operative housing bodies
(1) The regulations may declare any matter relating to a co-operative housing body to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to any excluded Corporations legislation provision or provisions (with such modifications as may be specified in the declaration).
Note.
Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.
(2) Without limiting subsection (1), any such regulations may—
(a) specify modifications to the definitions and other interpretative provisions of the Corporations legislation relevant to any excluded Corporations legislation provision that is the subject of the declaration, and
(b) provide for ASIC to exercise a function under any excluded Corporations legislation provision that is the subject of the declaration, but only if—
(i) ASIC is to exercise that function pursuant to an agreement of the kind referred to in section 11 (8) or (9A) (b) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and
(ii) ASIC is authorised to exercise that function under section 11 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and
(c) specify that a reference to ASIC in any excluded Corporations legislation provision that is the subject of the declaration is to be read as a reference to another person, and
(d) identify any excluded Corporations legislation provision to which the declaration relates by reference to that provision as in force at a particular time, and
(e) specify a court of this State (other than the Supreme Court) to exercise any function conferred on a court or the Court by any excluded Corporations legislation provision to which the declaration relates.
(3) However, a regulation may not declare a matter to be an applied Corporations legislation matter in relation to an excluded Corporations legislation provision to the extent that the application of the provision would be inconsistent with a provision of this Act.
(4) Words and expressions used in this section and also in Part 3 of the Corporations (Ancillary Provisions) Act 2001 have the same meanings as they have in that Part.
s 17: Subst 2001 No 34, Sch 4.11 [10].
18 (Repealed)
Part 2 Functions and powers of Registrar
19 Functions of Registrar
The functions of the Registrar are—
(a) to register, supervise and regulate co-operative housing bodies, and
(b) to supervise and enforce compliance by co-operative housing bodies with this Act and with standards, and
(c) to ensure that an effective and efficient system of prudential supervision is applied to societies, and
(d) to facilitate or direct the transfer of engagements of, or the conversion or merger of, co-operative housing bodies, and
(e) (Repealed)
(f) to carry out such other functions as are conferred on the Registrar by or under this or any other Act.
s 19: Am 1999 No 2, Sch 4 [5]; 2016 No 27, Sch 1.9 [4].
20 General powers
(1) The Registrar has power to do all things necessary or convenient to be done for, or in connection with, the performance of the Registrar’s functions.
(2) Without limiting subsection (1), the Registrar has such powers as are conferred on the Registrar by or under this or any other Act.
s 20: Am 1999 No 2, Sch 4 [5] [6].
21 Application of variation under standards
(1) If a standard provides that the operation of the standard in relation to a particular co-operative housing body may be varied by the Registrar by temporarily changing a requirement of the standard, the Registrar may temporarily change the requirement as allowed under the standard.
(2) Subsection (1) does not limit section 20 (General powers).
22 (Repealed)
23 Inspection of documents
(1) A person may—
(a) inspect documents prescribed by the regulations or documents of a class prescribed by the regulations kept by the Registrar relating to co-operative housing bodies on payment of the fee (if any) prescribed by the regulations, and
(b) obtain, on payment of the fee prescribed by the regulations, a certified copy of a document that a person may inspect under paragraph (a).
(2) If a reproduction or transparency of a document, or an extract of information contained in a document, is produced for inspection, a person is not entitled under subsection (1) to require the production of the original of that document.
s 23: Subst 1999 No 2, Sch 4 [8].
24 Power of Registrar to reject documents, etc
(1) If the Registrar is of the opinion that a document submitted to the Registrar—
(a) contains matter contrary to law, or
(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included, or
(c) because of an omission or misdescription has not been duly completed, or
(d) does not comply with the requirements of this Act, or
(e) contains an error, alteration or erasure,
the Registrar may refuse to register, or may reject, the document and may request—
(f) that the document be appropriately amended or completed and resubmitted, or
(g) that a fresh document be submitted in its place, or
(h) if the document has not been duly completed—that a supplementary document be submitted.
(2) The Registrar may require a person who submits a document to the Registrar to also produce another document, or to give any information, that the Registrar considers necessary in order to form an opinion whether the Registrar should refuse to register or should reject the document.
s 24: Am 1999 No 2, Sch 4 [5].
25 Extension or abridgment of time
The Registrar may, on receipt of written application by a co-operative housing body or of the Registrar’s own initiative, extend or abridge the time within which anything is required to be done under this Act or the body’s rules, even if that time has ended.
s 25: Am 1999 No 2, Sch 4 [6].
26 Review of Registrar decisions
(1) A person whose interests are affected by a decision of the Registrar made under this Act may, by written notice given to the Registrar, request the Registrar to review the decision.
(2) The Registrar must comply with a request under subsection (1).
(3) However, a person may not request the Registrar to review—
(a) a decision made under subsection (6) to confirm, vary or reverse a decision (the original decision), or
(b) the original decision as confirmed or varied.
(4) A request under subsection (1) must be made within 1 month after the person is given notice of the decision.
(5) When reviewing a decision, the Registrar must give the person who requested the review an opportunity to appear before the Registrar and make a submission in relation to the decision.
(6) The Registrar may confirm, vary or reverse the decision.
27 Administrative review by NCAT of Registrar decisions
(1) A person whose interests are affected by a decision of the Registrar made under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(2) This section does not apply to any of the following decisions of the Registrar—
(a) a decision under any of the following provisions—
(i) section 21 (Application of variation under standards),
(ii) Subdivision 1 (Enforcement powers) of Division 2 (Specific powers) of Part 2 (Functions and powers of Registrar),
(iii) section 40 (Special meeting and inquiry),
(iv) section 42 (Power to suspend operations),
(v) section 43 (Appointment of administrator),
(vi) section 47 (Power to control advertising),
(vii) section 156 (Registrar may direct a transfer of engagements between societies of the same type),
(viii) (Repealed)
(b) a decision under section 41 (Intervention by Registrar), other than the following decisions—
(i) a decision to remove an individual director,
(ii) a decision to remove an auditor,
(iii) a decision directing a co-operative housing body to change any practice if the practice is not dealt with by a standard,
(c) a decision prescribed by the regulations for the purposes of this subsection.
(3) For the purposes of a review to which this section applies, the internal review referred to in section 55 (1) (b) of the Administrative Decisions Review Act 1997 is a review under section 26 of this Act.
(4) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to a decision of the Registrar made under this Act.
s 27: Am 2000 No 93, Sch 1.5 [4]; 2013 No 95, Sch 2.38 [1] [2].
Subdivision 1 Enforcement powers
28 Obtaining information etc
(1) The Registrar may, if it is reasonably necessary for the purposes of the Registrar’s functions under this Act, by written notice given to a co-operative housing body, or a body corporate related to a co-operative housing body, require the co-operative housing body or body corporate—
(a) to give to the Registrar, within a reasonable period and in a reasonable way specified in the notice, specified information and reports, and
(b) to give to the Registrar, at the reasonable times and in a reasonable way specified in the notice, periodic reports on specific matters, and
(c) to notify the Registrar, within the reasonable time and in a reasonable way specified in the notice, if—
(i) a specified event or change of circumstances happens, or
(ii) the co-operative housing body or body corporate becomes aware that a specified event or change of circumstances is likely to happen.
(2) The Registrar may, if it is reasonably necessary for the purposes of the Registrar’s functions under this Act, by written notice given to a services corporation, or a body corporate related to a services corporation, require the services corporation or body corporate to give to the Registrar, within a reasonable time and in a reasonable way specified in the notice, specified information.
(3) A co-operative housing body, body corporate or services corporation that, without reasonable excuse, fails to comply with a requirement under subsection (1) or (2) to the extent that it is capable of doing so commits an offence.
Maximum penalty—50 penalty units.
(4) It is not a reasonable excuse for a co-operative housing body, body corporate or services corporation to fail to comply with a requirement under subsection (1) or (2) that complying with the requirement might tend to incriminate the co-operative housing body, body corporate or services corporation.
(5) The fact that information or a report or notification was given by a co-operative housing body, body corporate or services corporation under subsection (1) or (2) is not admissible in evidence against the co-operative housing body, body corporate or services corporation in a criminal proceeding (other than a proceeding in relation to the falsity of the information, report or notification) if—
(a) the co-operative housing body, body corporate or services corporation, before giving the information, report or notification (the relevant action) claimed that the relevant action might tend to incriminate the co-operative housing body, body corporate or services corporation, and
(b) the relevant action might in fact tend to incriminate the co-operative housing body, body corporate or services corporation.
s 28: Am 1999 No 2, Sch 4 [5] [6] [9].
29 Obtaining evidence
(1) The Registrar may, if it is reasonably necessary for the purposes of this Act, by written notice given to a person, require the person—
(a) to attend before an employee of the Department of Customer Service authorised for the purpose, at a reasonable time and place specified in the notice, and then and there answer questions, and
(b) to produce to an employee of the Department of Customer Service authorised for the purpose, at a reasonable time and place specified in the notice, documents in the custody or under the control of the person.
(2) An employee before whom a person attends under subsection (1) (a) may require answers to be verified or given on oath or affirmation, and either orally or in writing, and for that purpose the employee may administer an oath or affirmation.
(3) The oath to be taken, or affirmation to be made, by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true.
(4) An employee to whom documents are produced under subsection (1)—
(a) may keep the documents for 60 days or, if a prosecution for an offence against this Act of which the document may afford evidence is instituted within that period, until the completion of the proceeding for the offence and of any appeal in relation to the proceeding, and
(b) while the employee has possession of the document, may take extracts from and make copies of the document, but must allow the document to be inspected at any reasonable time by a person who would be entitled to inspect it if it were not in the employee’s possession.
(5) The regulations must prescribe scales of allowances and expenses to be allowed to persons required to attend under this section.
(6) The Registrar may authorise an employee for the purpose of subsection (1) (a) only if the person has, in the Registrar’s opinion, the appropriate expertise for the purpose (whether because of training or otherwise).
(7) A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) to the extent that the person is capable of doing so commits an offence.
Maximum penalty—50 penalty units.
(8) It is not a reasonable excuse for a person to fail to comply with a requirement under subsection (1) that complying with the requirement might tend to incriminate the person.
(9) An answer given by a person under subsection (1) is not admissible against the person in a criminal proceeding (other than a proceeding in relation to the falsity of the answer) if—
(a) the person, before giving the answer, claimed that giving the answer might tend to incriminate the person, and
(b) giving the answer might in fact tend to incriminate the person.
(10) The fact that a document was produced by a person under subsection (1) is not admissible in evidence against the person in a criminal proceeding (other than a proceeding in relation to the falsity of the document) if—
(a) the person, before producing the document, claimed that producing the document might tend to incriminate the person, and
(b) producing the document might in fact tend to incriminate the person.
s 29: Am 1999 No 2, Sch 4 [10]–[12]; 2015 No 58, Sch 3.24 [1] [2]; 2022 No 59, Sch 3.15.
30 Inspectors
(1) The Registrar may authorise a person, or a class of persons, to exercise—
(a) all the powers conferred by this Act on an inspector, or
(b) any powers conferred by this Act on an inspector.
(2) The Registrar is to cause each inspector to be issued with a certificate of identification in the approved form.
s 30: Am 2016 No 27, Sch 1.9 [5].
31 Inspector to produce identification
If an inspector proposing to exercise the functions of an inspector fails to produce on demand his or her certificate of identification, the inspector is not authorised to exercise those functions in relation to the person making the demand.
32 Entry and search—monitoring compliance
(1) An inspector may, for the purpose of finding out whether the requirements of this Act are being complied with—
(a) enter any place, and
(b) exercise the powers set out in section 34 (General powers of inspector in relation to places).
(2) An inspector must not enter a place, or exercise a power under subsection (1), unless—
(a) the place is premises occupied by a co-operative housing body or services corporation, or a body corporate related to a co-operative housing body or services corporation, and the entry is made when the premises are open for conduct of business or otherwise open for entry, or
(b) the place is premises occupied by a banker or liquidator of a co-operative housing body, or a body corporate related to a co-operative housing body, and the entry is made when the premises are open for conduct of business or otherwise open for entry, or
(c) the place is premises that are not occupied for residential purposes, the inspector believes on reasonable grounds that accounting records or other prescribed documents of, or any auditor’s working papers relating to, a co-operative housing body, or a body corporate related to a co-operative housing body, are kept or are to be found on the premises and the entry is made when the premises are open for conduct of business or otherwise open for entry, or
(d) the occupier of the place consents to the entry or exercise of the power, or
(e) a warrant under section 35 (Monitoring warrants) authorises the entry or exercise of the power.
33 Entry and search—evidence of offences
(1) Subject to subsection (3), if an inspector has reasonable grounds for suspecting that there is in a place a particular thing (the evidence) that may afford evidence of the commission of an offence against this Act, the inspector may—
(a) enter the place, and
(b) exercise the powers set out in section 34 (General powers of inspector in relation to places).
(2) If an inspector enters the place and finds the evidence, the following provisions have effect—
(a) the inspector may seize the evidence,
(b) the inspector may keep the evidence for 60 days or, if a prosecution for an offence against this Act in the commission of which the evidence may have been used or otherwise involved is instituted within that period, until the completion of the proceeding for the offence and of any appeal in relation to the proceeding,
(c) if the evidence is a document—while the inspector has possession of the document, the inspector may take extracts from and make copies of the document, but must allow the document to be inspected at any reasonable time by a person who would be entitled to inspect it if it were not in the inspector’s possession.
(3) An inspector must not enter the place or exercise a power under subsection (1) unless—
(a) the occupier of the place consents to the entry or exercise of the power, or
(b) a warrant under section 36 (Offence related warrants) that was issued in relation to the evidence authorises the entry or exercise of the power.
(4) If, while searching the place under subsection (1) under a warrant under section 36 (Offence related warrants)—
(a) an inspector finds a thing that the inspector believes, on reasonable grounds, to be—
(i) a thing (other than the evidence) that will afford evidence of the commission of the offence mentioned in subsection (1), or
(ii) a thing that will afford evidence of the commission of another offence against this Act, and
(b) the inspector believes, on reasonable grounds, that it is necessary to seize the thing to prevent—
(i) its concealment, loss or destruction, or
(ii) its use in committing, continuing or repeating the offence mentioned in subsection (1) or the other offence, as the case may be,
subsection (2) applies to the thing as if it were the evidence.
(5) An inspector who seizes or damages anything under this section must give written notice of particulars of the thing or damage.
(6) The notice must be given to—
(a) if anything is seized—the person from whom the thing was seized, or
(b) if damage is caused to anything—the person who appears to the inspector to be the owner.
34 General powers of inspector in relation to places
(1) The powers an inspector may exercise under section 32 (1) (b) (Entry and search—monitoring compliance) or 33 (1) (b) (Entry and search—evidence of offences) in relation to a place are as follows—
(a) to search any part of the place,
(b) to inspect, examine or photograph anything in the place,
(c) to take extracts from, and make copies of, any documents in the place,
(d) to take into the place such equipment and materials as the inspector requires for the purpose of exercising any powers in relation to the place,
(e) to require the occupier or any person in the place to give to the inspector reasonable assistance in relation to the exercise of an inspector’s powers mentioned in paragraphs (a) to (d).
(2) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (1) (e).
Maximum penalty—25 penalty units.
(3) It is not a reasonable excuse for a person to fail to comply with a requirement under subsection (1) (e) on the ground of the privilege against self-incrimination.
(4) If, under a requirement under subsection (1) (e), a person is required to answer a question or produce a document, the contents of the answer, or the fact of production of the document, is not admissible in evidence against the person in a criminal proceeding (other than a proceeding in relation to the falsity of the answer or document).
(5) For the purposes of the application of subsection (4) to the production of a document, the contents of the document are to be disregarded.
35 Monitoring warrants
(1) An inspector may apply to a Judge of the Local Court for a warrant under this section in relation to a particular place.
(2) Subject to subsection (3), the judge may issue the warrant if the judge is satisfied, by information on oath, that it is reasonably necessary that the inspector should have access to the place for the purpose of finding out whether the requirements of this Act are being complied with.
(3) If the judge requires further information concerning the grounds on which the issue of the warrant is being sought, the judge must not issue the warrant unless the inspector or another person has given the information to the judge in the form (either orally or by affidavit) that the judge requires.
(4) The warrant must—
(a) authorise the inspector, with such assistance and by such force as is necessary and reasonable—
(i) to enter the place, and
(ii) to exercise the powers set out in section 34 (General powers of inspector in relation to places), and
(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night, and
(c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect, and
(d) state the purpose for which the warrant is issued.
s 35: Am 2025 No 61, Sch 2.15[1] [2].
36 Offence related warrants
(1) An inspector may apply to a Judge of the Local Court for a warrant under this section in relation to a particular place.
(2) Subject to subsection (3), the judge may issue the warrant if the judge is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, in the place a particular thing (the evidence) that may afford evidence of the commission of an offence against this Act.
(3) If the judge requires further information concerning the grounds on which the issue of the warrant is being sought, the judge must not issue the warrant unless the inspector or another person has given the information to the judge in the form (either orally or by affidavit) that the judge requires.
(4) The warrant must—
(a) authorise the inspector, with such assistance and by such force as is necessary and reasonable—
(i) to enter the place, and
(ii) to exercise the powers set out in section 34 (General powers of inspector in relation to places), and
(iii) to seize the evidence, and
(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night, and
(c) specify the day (not more than 7 days after the issue of the warrant) on which the warrant ceases to have effect, and
(d) state the purposes for which the warrant is issued.
s 36: Am 2025 No 61, Sch 2.15[1] [2].
37 Offence related warrant may be granted by telephone
(1) If, because of urgent circumstances, an inspector considers it necessary to do so, the inspector may, under this section, apply by telephone for a warrant under section 36 (Offence related warrants).
(2) Before applying for the warrant, the inspector must prepare an information of the kind mentioned in section 36 (2) that sets out the grounds on which the issue of the warrant is sought.
(3) If it is necessary to do so, the inspector may apply for the warrant before the information has been sworn.
(4) If the Judge of the Local Court is satisfied—
(a) after having considered the terms of the information, and
(b) after having received such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought,
that there are reasonable grounds for issuing the warrant, the judge may, under section 36 (Offence related warrants), complete and sign such a warrant as the judge would issue under that section if the application had been made under that section.
(5) If the judge completes and signs the warrant—
(a) the judge must—
(i) tell the inspector what the terms of the warrant are, and
(ii) tell the inspector the date on which and the time at which the warrant was signed, and
(iii) record on the warrant the reasons for granting the warrant, and
(b) the inspector must—
(i) complete a form of warrant in the same terms as the warrant completed and signed by the judge, and
(ii) write on the form of warrant the name of the judge and the date on which and the time at which the judge signed the warrant.
(6) The inspector must also, not later than the day after the day of expiry or execution of the warrant (whichever is the earlier), send to the judge—
(a) the form of warrant completed by the inspector, and
(b) the information mentioned in subsection (2), which must have been duly sworn.
(7) When the judge receives the documents mentioned in subsection (6), the judge must—
(a) attach them to the warrant that the judge completed and signed, and
(b) deal with them in the way in which the judge would have dealt with the information if the application for the warrant had been made under section 36 (Offence related warrants).
(8) A form of warrant duly completed by the inspector under subsection (5) is authority for any entry, search, seizure or other exercise of a power that the warrant signed by the judge authorises.
(9) If—
(a) it is material for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised by this section, and
(b) the warrant completed and signed by the judge authorising the exercise of power is not produced in evidence,
the court must assume, unless the contrary is proved, that the exercise of power was not authorised by such a warrant.
s 37: Am 2025 No 61, Sch 2.15[2]–[5].
38 Obstruction etc of inspectors
A person must not, without reasonable excuse, assault, obstruct, hinder or resist an inspector in the exercise of a power under this Act.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
39 False or misleading statements
(1) In this section—
relevant person means a person exercising powers under this Act, and includes an inspector.
(2) A person must not—
(a) make a statement to the Registrar or a relevant person that the person knows is false or misleading in a material particular, or
(b) omit from a statement made to the Registrar or a relevant person anything without which the statement is, to the person’s knowledge, misleading in a material particular, or
(c) give to the Registrar or a relevant person a document containing information that the person knows is false, misleading or incomplete in a material particular without, at the same time—
(i) indicating that the document is false, misleading or incomplete and the respect in which it is false, misleading or incomplete, and
(ii) giving correct information if the person has, or can reasonably obtain, the correct information.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
Subdivision 2 Special meeting and inquiry
40 Special meeting and inquiry
(1) The Registrar may, on the written application of a majority of the directors, or not less than 10% of the members, of a society or on the Registrar’s own initiative—
(a) call a special meeting of the society, or
(b) hold an inquiry into affairs (including the working and financial conditions) of the society.
(2) The Registrar may, on the Registrar’s own initiative, hold an inquiry into affairs (including the working and financial conditions) of—
(a) a body corporate related to a society, or
(b) a services corporation.
(3) An application under subsection (1) must be supported by such evidence as the Registrar directs for the purpose of showing that the applicants have good reason for requiring the meeting or inquiry and that the application is made without malicious motive.
(4) Notice of the application must be given to the society if the Registrar directs.
(5) Security for the expenses of a meeting or inquiry must be given—
(a) if the meeting is called or inquiry is held on an application under subsection (1)—by the applicants, or
(b) in any other case—by such persons and in such way as the Registrar directs.
(6) The Registrar may—
(a) direct the time and place the meeting or inquiry is to be held, and
(b) direct what matters are to be discussed or determined, and
(c) despite the rules of the society, give notice to members of the holding of the meeting or inquiry as the Registrar considers appropriate.
(7) The Registrar may, by written notice, direct the directors and such other persons as the Registrar requires to attend the meeting or inquiry.
(8) A person to whom a direction is given under subsection (7) must not, without reasonable excuse, fail to comply with the direction.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(9) A meeting held under this section has all the powers of a meeting called under the rules of a society and has power to appoint a person to preside at the meeting, despite any rule of the society to the contrary.
(10) The Registrar, or any person nominated by the Registrar, may attend and address a meeting held under this section.
(11) All expenses of and incidental to the meeting or inquiry may be defrayed—
(a) if the meeting is called or inquiry is held under subsection (1)—by the applicants or out of the funds of the society or by any officer or member, or former officer or member, in such proportions as may be agreed between the Registrar and those persons, or
(b) if the inquiry is held under subsection (2)—
(i) in the case of a related body corporate—out of the funds of the society to whom the body corporate is related, or
(ii) in the case of a services corporation—out of the funds of the services corporation, or out of the funds of any society that has shares in the services corporation, in such proportions as the Registrar directs,
and may be recovered as a debt in a court having jurisdiction for the recovery of debts up to the amount concerned.
(12) In default of agreement under subsection (11) (a), the expenses must be defrayed by such persons, and in such proportions, as the Court, on the application of the Registrar, directs.
s 40: Am 1999 No 2, Sch 4 [5] [6].
Subdivision 3 Special power of intervention
41 Intervention by Registrar
(1) If the Registrar is of the opinion that—
(a) a co-operative housing body has contravened this Act and, after being given written notice of the contravention by the Registrar, has allowed the contravention to continue or has again contravened this Act, or
(b) a co-operative housing body is trading unprofitably or has an accumulated deficit in its accounts, or
(c) the affairs of a co-operative housing body are being conducted in an improper or financially unsound way,
the Registrar may, by written notice given to the body, place it under direction.
(2) The Registrar may, by written notice given to the body, revoke the notice.
(3) While the co-operative housing body is under direction, the Registrar may do all things that the Registrar considers necessary to ensure that the matter is remedied.
(4) Without limiting subsection (3), the Registrar may—
(a) order an audit of the affairs of the co-operative housing body by an auditor chosen by the Registrar at the expense of the body, or
(b) direct the co-operative housing body to change any practices that in the Registrar’s opinion are undesirable or unsound, or
(c) direct the co-operative housing body to cease or limit the raising or lending of funds or the exercise of other powers, or
(d) remove a director, or all the directors, of the co-operative housing body from office and appoint another director or other directors, or
(e) remove any auditor of the co-operative housing body from office and appoint another auditor, or
(f) give any other directions as to the way in which the affairs of the co-operative housing body are to be conducted or not conducted.
(5) If the co-operative housing body—
(a) fails, without reasonable excuse, to comply with a direction given or requirement made under this section to the extent that the co-operative housing body is capable of doing so, or
(b) without reasonable excuse, obstructs, hinders or resists the exercise of the Registrar’s powers under this section,
the co-operative housing body and any officer of the co-operative housing body who is in default each commit an offence.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(6) A director or auditor appointed under this section holds office for such term as the Registrar directs.
s 41: Am 1999 No 2, Sch 4 [5] [12].
Subdivision 4 Power to suspend operations of society
42 Power to suspend operations
(1) If the Registrar considers that it is necessary to do so—
(a) in the interests of members or creditors, or persons who may become members or creditors, of a co-operative housing body, or
(b) because a co-operative housing body has failed to comply with a standard,
the Registrar may, by written notice given to the body, direct the body not to do any of the following—
(c) give any financial accommodation to members,
(d) borrow any amount,
(e) accept any payment on account of share capital except calls that fell due before the notice was given,
(f) repay any amount paid on shares,
(g) repay any money on loan,
(h) pay or transfer an amount to any person, or create an obligation to do so.
(2) A notice under subsection (1) continues in force until it expires, or is withdrawn by the Registrar.
(3) The Registrar may, by a further written notice given to the co-operative housing body—
(a) extend the period for which a notice under subsection (1) is to have force, or
(b) amend the terms of the notice, or
(c) withdraw the notice.
(4) If a co-operative housing body fails to comply with a notice under this section, the body and any officer of the body who is in default each commit an offence.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(5) Subsection (4) does not apply if the failure to comply happens with the written permission of the Registrar.
Subdivision 5 Administrators
43 Appointment of administrator
(1) The Registrar may, by written notice, appoint an administrator to conduct the affairs of a co-operative housing body and may, by written notice, revoke the appointment.
(2) A notice of appointment must specify—
(a) the date of appointment, and
(b) the appointee’s name, and
(c) the appointee’s business address.
(3) If the appointee’s name or business address changes, the appointee must immediately give written notice of the change to the Registrar.
(4) The Registrar must not appoint an administrator unless—
(a) the Registrar is of the opinion that—
(i) the co-operative housing body has contravened this Act or its rules and, after being given written notice of the contravention by the Registrar, has allowed the contravention to continue or has again contravened this Act or those rules, or
(ii) the body is trading unprofitably or has an accumulated deficit in its accounts, or
(iii) the affairs of the body are being conducted in an improper or financially unsound way, or
(b) after making such inquiries in relation to the body as the Registrar considers appropriate, the Registrar is satisfied that it is in the interest of members or creditors that the body’s affairs be conducted by an administrator, or
(c) the Registrar has certified that—
(i) the body has not started business within a year of registration or has suspended or ceased to carry on business for a period of more than 6 months, or
(ii) an event (specified in the certificate) has happened on the happening of which the regulations or the body’s rules provide that the body is to be wound-up, or
(iii) there are, or have been for a period of 1 month immediately before the date of the certificate, insufficient directors of the body to constitute a quorum as provided by the body’s rules.
(5) On the appointment of an administrator of a co-operative housing body—
(a) the directors of the body cease to hold office, and
(b) all contracts of employment with, or for providing administrative or secretarial services to, the body are terminated, and
(c) the administrator may terminate any contract for providing other services to the body.
(6) An administrator of a co-operative housing body has the powers and functions of the board of the body, including the board’s powers of delegation.
(7) A director of a co-operative housing body must not be appointed or elected while the administrator is in office except as provided by this section.
(8) An administrator holds office until the administrator’s appointment is revoked.
(9) Immediately on the revocation of an administrator’s appointment, the administrator must prepare and submit a report to the Registrar showing how the administration was carried out, and for that purpose an administrator has access to the co-operative housing body’s records and documents.
(10) On providing the report and accounting fully in relation to the administration of the co-operative housing body to the satisfaction of the Registrar, the administrator is released from any further duty to account in relation to the administration of the body other than on account of fraud, dishonesty, negligence or wilful failure to comply with this Act.
(11) Before revoking an administrator’s appointment, the Registrar must—
(a) appoint another administrator, or
(b) appoint a liquidator, or
(c) ensure that directors have been appointed or elected under the co-operative housing body’s rules at a meeting called by the administrator under the rules, or
(d) appoint directors of the body.
(12) Directors elected or appointed under this section—
(a) take office on the revocation of the administrator’s appointment, and
(b) in the case of directors appointed under this section—hold office, subject to section 44 (Additional powers of Registrar), until the society’s next annual general meeting.
(13) The expenses of conducting a co-operative housing body’s affairs by an administrator are payable from the body’s funds.
(14) The expenses of conducting a co-operative housing body’s affairs include—
(a) if the administrator is not an employee of the Department of Customer Service—remuneration of the administrator at a rate approved by the Registrar, or
(b) if the administrator is an employee of the Department of Customer Service—the amount that the Registrar certifies should be paid to the Registrar as repayment of the administrator’s remuneration.
(15) An amount certified by the Registrar as the amount that should be paid to the Registrar as repayment of the administrator’s remuneration is a debt due to the Crown and may be sued for and recovered in a court having jurisdiction for the recovery of debts up to the amount concerned.
(16) An administrator has, in relation to the expenses of conducting a co-operative housing body’s affairs, the same priority on the winding-up of the body as the liquidator of the body has.
(17) If a co-operative housing body incurs any loss because of any fraud, dishonesty, negligence or wilful failure to comply with this Act or the body’s rules by an administrator, the administrator is liable for the loss. An administrator is not liable for any other loss but must account for the loss in a report given under this section.
s 43: Am 1999 No 2, Sch 4 [5] [13] [14]; 2015 No 58, Sch 3.24 [1]; 2022 No 59, Sch 3.15.
44 Additional powers of Registrar
(1) If the Registrar appoints directors of a co-operative housing body under section 43 (11) (d) (Appointment of administrator), the Registrar may, by written notice given to the body, specify—
(a) a time during which this section is to apply in relation to the body, and
(b) the terms and conditions on which all or any of the directors hold office, and
(c) the rules that are to be the body’s rules.
(2) While this section applies to a co-operative housing body, the Registrar may—
(a) from time to time remove and appoint directors, and
(b) from time to time vary, revoke or specify new terms and conditions in place of all or any of the terms and conditions specified under subsection (1), and
(c) amend all or any of the rules specified under subsection (1).
(3) The Registrar may, by written notice given to a co-operative housing body, extend the time for which this section is to apply in relation to the body.
(4) A rule specified by the Registrar under this section as a rule of a co-operative housing body—
(a) is not to be amended or revoked except in the way set out in this section, and
(b) if it is inconsistent with any other rule of the body—prevails over the other rule, and the other rule is to the extent of the inconsistency invalid, and
(c) has the same evidentiary value as is by this Act accorded to the body’s rules and to copies of them.
45 Stay of proceedings
(1) If the Registrar appoints an administrator to conduct a co-operative housing body’s affairs, a person must not begin or continue any proceeding in a court against the body until the administrator’s appointment is revoked except with the leave of the Court and, if the Court grants leave, in accordance with any terms and conditions that the Court imposes.
(2) A person intending to apply for leave of the Court under subsection (1) must give to the Registrar not less than 10 days notice of intention to apply.
(3) On the hearing of an application under subsection (1), the Registrar may be represented and may oppose the granting of the application.
46 Administrator to report to Registrar
On the receipt of a request from the Registrar, the administrator of a co-operative housing body must, without delay, prepare and give to the Registrar a report showing how the administration is being carried out.
Subdivision 6 Advertising by co-operative housing bodies
47 Power to control advertising
(1) The Registrar may, by written notice given to a co-operative housing body, direct it—
(a) not to issue an advertisement, or
(b) not to issue an advertisement of a specified kind, or
(c) not to issue an advertisement that is substantially in the same form as an advertisement that has been issued before, or
(d) to include in an advertisement of a specified kind, or in an invitation to invest in or lend amounts to the body, information relating to the body that is required by the Registrar to be included.
(2) Directions under subsection (1) may be varied or revoked by further written notice given to the body by the Registrar.
(3) A body that fails to comply with a direction under this section commits an offence.
Maximum penalty—50 penalty units.
47A Exercise of functions and powers of Registrar
(1) The functions and powers expressed to be conferred on the “Registrar” by or under this Act are to be exercised and performed by the Secretary of the Department of Customer Service.
(2) For that purpose, a reference in this Act to the Registrar is to be read as a reference to the Secretary of the Department of Customer Service.
s 47A: Ins 1999 No 2, Sch 4 [15]. Am 2015 No 58, Sch 3.24 [3]; 2022 No 59, Sch 3.15.
47B Delegation by Registrar
(1) The Registrar may delegate to any person any of the Registrar’s functions and powers except this power of delegation.
(2) A delegate may sub-delegate to another person any function or power delegated under this section if authorised by the terms of the delegation to do so.
s 47B: Ins 1999 No 2, Sch 4 [15].
Part 3 Societies
48 Co-operative housing societies and Starr-Bowkett societies
(1) A society may be either a co-operative housing society or a Starr-Bowkett society.
(2) A society is a co-operative housing society if it has as its object the assisting of members and other persons to achieve home ownership (including ownership of land upon which a home is to be erected), and is by its rules—
(a) authorised to raise money on loan, and
(b) not authorised to receive money on deposit, and
(c) not authorised to raise money by the subscription of its members except money raised by the nominal subscription required by its rules for a person to become a member.
(3) A society is a Starr-Bowkett society if it has as its object the raising, by the subscription of its members, of a fund for making loans to its members upon the security of a mortgage over freehold or leasehold land or land of any tenure under any Act dealing with the disposition and holding of lands of the Crown, and is by its rules—
(a) authorised to raise money by the subscription of its members, and
(b) authorised to determine by ballot the precedence among applicants for loans.
(4) A society has such additional objects as may be prescribed by the regulations in relation to the provision of housing for its members and other persons, and any such additional object may be prescribed so as—
(a) to apply generally to all societies, or
(b) to apply to one kind of society only or to both kinds, or
(c) to apply to a particular society or the members of a particular class of societies, or
(d) to be limited in its application to those societies by reference to specified exceptions or factors.
49 Formation of co-operative housing and Starr-Bowkett societies
(1) A body proposed to be a co-operative housing society or a Starr-Bowkett society may be formed by any 7 or more adults.
(2) The proposed society may be formed only if there has been a meeting for the purpose of forming the society at which there were present 7 or more adults.
(3) At the formation meeting, there must be presented—
(a) a written statement showing—
(i) the objects of the society, and
(ii) whether the society is proposed to operate as a co-operative housing society or a Starr-Bowkett society, and
(iii) the reasons for believing—
(A) that an application for registration of the society should be granted, and
(B) that, if registered, the society will be able to carry out its objects successfully, and
(b) a copy of the proposed rules of the society.
(4) If, at the formation meeting or any subsequent or adjourned meeting, 7 or more adults, after considering the statement and the rules, approve the rules (with or without amendment), and sign an application for membership and shares, they may proceed to elect the first directors of the society under the rules as so approved.
(5) An application for shares in a proposed society, made before the registration of the society, may not be withdrawn, and a person who makes such an application is, on the registration of the society, liable to pay the society—
(a) the value of the shares for which the person applied, or
(b) the value of the minimum number of shares for which a member is entitled to subscribe,
whichever is the greater.
(6) The expenses of, and incidental to, the formation of the society may be paid out of the capital or income of the society.
(7) A person must not, before a society is registered—
(a) make an offer or invitation to the public in order to raise funds for the proposed society, whether by allotting a share or interest in the proposed society or accepting amounts on loan, or
(b) take an amount in consideration of the allotment of a share or interest in, or providing financial accommodation by, the proposed society.
Maximum penalty (subsection (7)): 50 penalty units or imprisonment for 12 months, or both.
50 Registration
(1) A proposed society formed under this Part may apply to the Registrar, in accordance with the regulations, to be registered under this Act as a society and authorised to operate either as a co-operative housing society or as a Starr-Bowkett society.
(2) An application for registration must—
(a) be made within 2 months after the formation meeting at which the first directors of the society were elected, and
(b) be accompanied by—
(i) a statement, in the form approved by the Registrar, to the effect that the requirements of section 49 (Formation of co-operative housing and Starr-Bowkett societies) have been complied with, and
(ii) a copy of the statement presented to the meeting, signed by the person presiding and the secretary, and
(iii) 2 copies of the proposed rules of the society, certified by the person presiding and the secretary to be the rules approved at the meeting, and
(iv) a list containing the full name, date and place of birth, residential address and business occupation of each director, and
(v) a list containing the full name, address and occupation of each of 7 or more adults who attended the meeting and applied for membership and (if applicable) shares, and
(vi) written estimates of all income and expenditure and capital flows over each of the first 3 years of operation of the society, and
(vii) such evidence as the Registrar requires—
(A) that the society is eligible for registration, and
(B) that the society, if registered, will be able to comply with this Act and all applicable standards, and
(C) that the society, if registered, will be able to carry out its objects successfully.
(3) (Repealed)
(4) If the Registrar is satisfied that the society is eligible for registration, the Registrar must—
(a) register the society and its proposed rules, and
(b) authorise the society to operate either as a co-operative housing society or a Starr-Bowkett society, but not both.
(5) A society is eligible for registration only if—
(a) the society’s application for registration complies with this Act, and
(b) the proposed rules of the society are not contrary to this Act, and
(c) there are reasonable grounds for believing that the society will, if registered—
(i) be able to comply with all applicable standards and applicable character requirements, and
(ii) be able to carry out its objects successfully, and
(d) there is no good reason why the society and its rules should not be registered.
(6) Without limiting the form that may be approved under subsection (2) (b) (i), the form may be an electronic form accessible on a publicly available website.
(7) (Repealed)
s 50: Am 2017 No 25, Sch 2.3 [1]–[3]; 2024 No 25, Sch 7.5[1].
51 Certificate of incorporation
(1) On registering a society, the Registrar must issue to the society—
(a) a certificate of incorporation, and
(b) a written authority to operate either as a co-operative housing society or a Starr-Bowkett society.
(2) A certificate of incorporation is conclusive evidence that all requirements of this Act in relation to registration and matters precedent or incidental to registration have been complied with.
(3) A written authority to operate either as a co-operative housing society or a Starr-Bowkett society is conclusive evidence that the society is authorised under this Act to operate as a co-operative housing society or a Starr-Bowkett society, as the case may be.
52 Effect of incorporation
A society is a body corporate with perpetual succession and—
(a) has, subject to this Act and the society’s rules, the legal capacity of a natural person, and
(b) has a common seal, and
(c) may sue and be sued in its corporate name.
53 Powers of societies
(1) Without limiting section 52 (Effect of incorporation), but subject to this Act and the society’s rules, a society may—
(a) raise money on loan, and
(b) act as agent for other persons in relation to the provision of housing for its members and other persons and the provision of financial services generally required by householders and their families (such as hospital, medical and general insurance and housing related services), and
(c) acquire by purchase or otherwise shares in an association, or in a corporation or other body corporate that has agreed to render special services to the society in furtherance of the society’s objects or has agreed to render special services to the members of the society, and
(d) hold a subsidiary, but only if approved of by the Registrar, and
(e) do anything else that it is authorised to do by this Act or the society’s rules.
(2) A society must not under subsection (1) (c) invest funds of an amount in excess of one-third of any sums transferred to any reserve, except as may be permitted by a standard.
(3) The powers of a subsidiary formed or acquired by a society are not limited by the society’s objects or limitations on the society’s powers.
54 Restrictions on subscriptions and deposits—co-operative housing societies
A co-operative housing society must not—
(a) receive money on deposit, or
(b) raise money by the subscription of its members except money raised by the nominal subscription required by its rules for a person to become a member.
55 Restrictions on borrowings by co-operative housing societies
(1) A co-operative housing society that raises money on loan by means of any one or more of the following kinds of loan must not raise money by means of any other kind of loan—
(a) loans made by lenders pursuant to three-party loan and guarantee agreements as referred to in section 4A of the Government Guarantees Act 1934, section 17AC of the Co-operation Act 1923 or section 60 (Treasurer’s guarantee for co-operative housing society loans) of this Act,
(b) (Repealed)
(c) loans made from the Home Purchase Assistance Fund, or loans made by any person on behalf of the Treasurer from any other public account of the State,
(d) loans made by a lender prescribed by the regulations for the purposes of this section.
(2) Where a co-operative housing society raises money on loan by means of a loan of a kind referred to in subsection (1), the society must not—
(a) create any mortgage, charge or lien or issue any debenture or bond other than—
(i) in the case of a loan of a kind referred to in subsection (1) (a)—a charge in favour of the Treasurer over the securities given to the society by its members in respect of loans made or to be made from money raised by the loan of that kind, or
(ii) in the case of a loan of a kind referred to in subsection (1) (c) or (d)—a charge in favour of the lender over the securities given to the society by its members in respect of loans made or to be made from money raised by the loan of that kind, or
(b) enter into any agreement which provides for the appointment of a receiver or manager of the property of the society.
s 55: Am 2010 No 42, Sch 3.2 [1] [2].
56 Prohibition on foreign borrowings by co-operative housing societies
A co-operative housing society must not—
(a) borrow money from a source outside Australia, or
(b) borrow money in a foreign currency, or
(c) borrow money by means of a loan that is repayable (whether as to principal or interest) in a foreign currency.
57 Restrictions on borrowings by Starr-Bowkett societies
(1) The total amount raised on loan by a Starr-Bowkett society and not repaid by the society must not at any time exceed whichever is the larger of the following amounts—
(a) 80% of the amount for the time being secured to the society by mortgages from its members,
(b) an amount equal to 12 months’ subscriptions on the shares for the time being in force.
(2) In calculating for the purposes of this section the amount for the time being secured to a society by mortgages from its members, the following amounts are to be disregarded—
(a) the amounts secured on any property in respect of which the payments were 12 months or more in arrears at the date of the last annual account and statement of the society,
(b) the amount secured on any property of which the society had been in possession for 12 months or more at the date of that account and statement.
58 Protection of lenders
A person who lends money to a society is not bound to see to the application of the money and is not in any way affected or prejudiced by the fact that the society, in borrowing the money, has contravened any provision of this Act or of the rules of the society.
59 Treasurer’s indemnity for loans by co-operative housing society
(1) The Treasurer may, on the recommendation of the New South Wales Land and Housing Corporation, grant a written indemnity for a co-operative housing society that indemnifies the society against loss as specified in the indemnity suffered by the society in respect of a loan made or to be made by the society.
(2) An indemnity in respect of a loan made by a society is subject to—
(a) the terms and conditions set out in the indemnity when it is granted, and
(b) any other terms and conditions imposed by the Treasurer, notice of which has been served on the society before the loan is made.
(3) An indemnity may apply—
(a) with respect to a particular loan, or
(b) with respect to loans of any class, whether or not made or to be made by the same society.
(4) An amount payable in connection with an indemnity under this section is to be paid out of moneys provided by Parliament.
(5) If a term or condition to which an indemnity relating to a society is subject is contravened, the Treasurer may, by notice served on the society, cancel the indemnity—
(a) if it was granted in respect of a particular loan—wholly, or
(b) if it was granted in respect of loans of a class made or to be made by that society—wholly or to the extent to which it applied in respect of any one or more of those loans.
(6) The Treasurer ceases to be liable in respect of an indemnity when the amount of the loan to which the indemnity relates is reduced to an amount that does not exceed the equivalent of 80% of the value of the security for the loan when the loan was made.
(7) The Treasurer may delegate to any Minister any or all of the Treasurer’s powers, authorities, duties or functions under this section.
s 59: Am 2001 No 52, Sch 1.2 [1].
60 Treasurer’s guarantee for co-operative housing society loans
(1) The Treasurer may, on the recommendation of the New South Wales Land and Housing Corporation, execute a guarantee in favour of any person approved by the Treasurer, for the repayment of any advance to a co-operative housing society made or to be made by the person.
(2) Sections 4 and 5 of the Government Guarantees Act 1934 apply to a guarantee authorised by this section in the same way as they apply to a guarantee authorised by that Act, except as provided by subsections (3) and (4).
(3) The guarantee is to be part of a three-party loan and guarantee agreement between the lender (being the approved person concerned), the Treasurer and the co-operative housing society under which, in consideration for the advance to be made by the lender to the co-operative housing society and the guarantee to be given by the Treasurer—
(a) the co-operative housing society and the lender undertake to observe the terms and conditions specified in the agreement, and
(b) the co-operative housing society creates a charge in favour of the Treasurer over the securities given to the society by its members in respect of loans to be made from the advance.
(4) The society concerned must lodge with the Registrar a copy of each such three-party loan and guarantee agreement entered into by the society as soon as practicable after it is entered into.
(5) The guarantee is enforceable against the Treasurer and the Consolidated Fund even though the lender is not authorised—
(a) to hold any security in respect of the debt guaranteed (other than the guarantee), or
(b) to appoint a receiver or manager of the property of the co-operative housing society.
(6) The Treasurer may delegate to any Minister any or all of the Treasurer’s functions under this section.
s 60: Am 2001 No 52, Sch 1.2 [2].
61 Rules
(1) The rules of a co-operative housing society must provide for the matters specified in Schedule 2.
(2) The rules of a Starr-Bowkett society must provide for the matters specified in Schedule 3.
(3) Subject to subsection (4), the rules of a society may also provide for any matter that is necessary, expedient or desirable for the society’s purposes.
(4) If there is any inconsistency between a rule of a society and this Act or a standard, this Act or the standard prevails and the rule is invalid to the extent of the inconsistency.
62 (Repealed)
63 Copies of rules
(1) A society must give a copy of its rules to a member or proposed member who requests it and has paid to the society the fee (if any) payable under subsection (2).
Maximum penalty—5 penalty units.
(2) A society may charge a fee for supplying the copy but only if the fee has been approved by its board.
64 Society and members to be bound by rules
The rules of a society bind the society, all its members, and all persons claiming through the society or a member, to the same extent as if—
(a) each member had subscribed his or her name and affixed his or her seal to the rules, and
(b) there were contained in the rules a covenant on the part of each member and the member’s legal representative to observe all the rules subject to this Act and the standards.
65 Alteration of rules by special resolution
Subject to sections 66 (Alteration of rules by board of directors), 68 (Power of Registrar to require modification of rules) and 69 (Power of Registrar to modify rules to facilitate transfer of engagements), the rules of a society may be altered only if the alteration has been approved by special resolution of the members under section 115 (Special resolutions).
66 Alteration of rules by board of directors
(1) A society’s rules may be altered by a resolution of its board if—
(a) the alteration is required by or under this Act or is to give effect to a standard, or
(b) the Registrar is satisfied that approval of the alteration by members of the society is not necessary and alteration by the board would be appropriate.
(2) The society must give written notice of the alteration to its members not later than the day on which notice is given of the next general meeting of the society.
Maximum penalty—20 penalty units.
(3) The notice may, with the prior written approval of the Registrar, be given by advertisement published—
(a) in a newspaper (whether published in print or on a publicly accessible website) having a circulation generally in the area in which the society operates, or
(b) on a publicly accessible website, or by other electronic means, appropriate in the Registrar’s opinion to cause the notice to come to the attention of persons in the area in which the society operates.
s 66: Am 2017 No 63, Sch 2.2 [1]; 2024 No 25, Sch 1.4.
67 Registration of alteration of rules
(1) If the Registrar is satisfied—
(a) that an alteration made under section 65 (Alteration of rules by special resolution) or 66 (Alteration of rules by board of directors) is not contrary to this Act or the standards, and
(b) that there is no good reason why the alteration should not be registered,
the Registrar must register the alteration.
(2) The alteration takes effect when it is registered.
(3) The rules of the society must be read subject to any registered alteration.
68 Power of Registrar to require modification of rules
(1) If, in the Registrar’s opinion, the rules of a society should be altered—
(a) to comply with this Act, or
(b) to give effect to a standard, or
(c) in the interests of the members of the society, or
(d) in the public interest,
the Registrar may, by written notice given to the society, require it, within a reasonable period specified in the notice, to alter its rules in a way specified in the notice or otherwise in a way approved by the Registrar.
(2) If the society fails to alter its rules as required by the notice, the Registrar may alter its rules by notation on the registered copy of the rules.
(3) The Registrar must immediately give written notice to a society of—
(a) an alteration of its rules made under this section, and
(b) the day on which the alteration starts.
(4) The society must give written notice of the alteration to its members not later than the day on which notice is given of the next general meeting of the society.
Maximum penalty—20 penalty units.
(5) The notice may, with the prior written approval of the Registrar, be given by advertisement published—
(a) in a newspaper (whether published in print or on a publicly accessible website) having a circulation generally in the area in which the society operates, or
(b) on a publicly accessible website, or by other electronic means, appropriate in the Registrar’s opinion to cause the notice to come to the attention of persons in the area in which the society operates.
s 68: Am 2000 No 93, Sch 1.5 [5]; 2017 No 63, Sch 2.2 [2]; 2024 No 25, Sch 1.4.
69 Power of Registrar to modify rules to facilitate transfer of engagements
(1) If the Registrar has directed a transfer of engagements under Part 5 (Mergers and transfers of engagements), the Registrar may, by notation on the registered copy of the rules of the transferor society (if it is to continue to exist) or the transferee society, alter the rules of the society to the extent necessary to ensure that the rules are appropriate.
(2) The Registrar must alter the rules by notation on the registered copy.
(3) The Registrar must immediately give written notice to a society of—
(a) an alteration of its rules made under this section, and
(b) the day on which the alteration starts.
(4) A society must give written notice of the alteration to its members not later than the day on which notice is given of the next general meeting of the society.
(5) The notice may, with the prior written approval of the Registrar, be given by advertisement published—
(a) in a newspaper (whether published in print or on a publicly accessible website) having a circulation generally in the area in which the society operates, or
(b) on a publicly accessible website, or by other electronic means, appropriate in the Registrar’s opinion to cause the notice to come to the attention of persons in the area in which the society operates.
s 69: Am 2017 No 63, Sch 2.2 [3]; 2024 No 25, Sch 1.4.
70 Members
(1) The members of a society are—
(a) the persons who sign the application for membership on the formation of the society, and
(b) any other persons who are admitted to membership under the society’s rules.
(2) The members of a merged society are the persons who, on the day of the merger, are members of a society that is a party to the merger, and any other persons who are admitted to membership under the merged society’s rules.
(3) The members of a society to which another society has transferred the whole of its engagements include the persons who, immediately before the transfer took effect, were members of the transferor society.
(4) The members of a society to which another society has transferred part of its engagements include the persons who, immediately before the transfer took effect, were members of the transferor society and are specified, for the purposes of this subsection, in an agreement between the societies.
(5) A person may exercise the rights of membership of a society only if the person has complied with any requirements for membership under the society’s rules.
71 Shares
(1) A co-operative housing body can have a share capital but does not have to have a share capital.
(2) The share capital of a co-operative housing body varies in amount according to the nominal value of shares from time to time subscribed.
(3) Shares are to be of a fixed amount, which is to be specified in the rules of the co-operative housing body.
(4) Shares are to be of one class all ranking equally.
(5) The rules of a co-operative housing society may not require a member to subscribe for more than one share and the nominal value of the share may not exceed $1.
(6) A share in a co-operative housing society cannot be sold or transferred.
(7) A share in a Starr-Bowkett society or association cannot be sold or transferred except in accordance with the rules of the society or association.
(8) The liability of a shareholder in a co-operative housing body in relation to a share is limited to the amount (if any) unpaid on the share.
72 Members who are minors
(1) Subject to a society’s rules, a minor may be a member.
(2) A member of a society who is a minor cannot hold office in a society and cannot vote at a meeting of the society.
(3) A member of a society is not at any time entitled on any ground relating to the member’s minority or former minority to avoid any of the member’s obligations or liabilities—
(a) as a member, or
(b) under any deed, mortgage, bill, lien, charge, contract, instrument or document entered into by the member as a member.
73 Joint members
(1) Membership in a society may be joint if the society’s rules provide for it.
(2) If membership is joint the following provisions apply—
(a) the register of members must indicate that a person is a joint member,
(b) the joint members are entitled to choose the order in which they are named in the register of members, but failing any such choice the society may enter the names in the order it considers appropriate,
(c) the joint member who is named first in the society’s register of members is the primary joint member,
(d) subject to the society’s rules, but without affecting the right of a member to obtain a copy of the statement of financial position from the society on demand, a notice or other document may be given or sent to the primary joint member,
(e) for the purpose of determining—
(i) who is qualified to vote on a resolution at a meeting of the society, and
(ii) the number or proportion of members required to give effect to any provision of this Act or the society’s rules,
membership is taken to be solely that of the primary joint member.
74 Corporate membership
(1) Subject to a society’s rules, a body corporate may be a member of the society.
(2) A body corporate that is a member of a society may, by written notice given to the society, appoint an individual to represent it at meetings of members of the society.
(3) A person appointed under subsection (2)—
(a) is entitled—
(i) to receive notice of all meetings of members in the same way as a member of the society, and
(ii) to exercise the same rights of voting as a member of the society, and
(b) is eligible to be elected as a director of the society if—
(i) the body corporate holds the qualifications required for holding office as a director (other than qualifications about age and being an individual), and
(ii) a person has not been appointed as liquidator of the body corporate.
75 Cessation of membership
A person ceases to be a member of a society as provided by the society’s rules.
76 Expulsion of member
A member of a society may be expelled, or have the member’s membership rescinded, under the society’s rules.
77 Liability of members
Subject to this Act, a member of a society is not liable, because of the membership, to contribute towards the payment of the debts and liabilities of the society or the costs, charges and expenses of a winding-up of the society.
78 Fees and charges
(1) A society must furnish to any person intending to become a member written notice of fees and charges payable by a member to the society.
Maximum penalty—5 penalty units.
(2) A society must on request made by a member of the society provide the member with a written notice showing the current fees and charges payable by a member to the society.
Maximum penalty—5 penalty units.
(3) (Repealed)
s 78: Am 2016 No 27, Sch 1.9 [7].
79 Fines payable by members
(1) A society may impose a fine on a member for any infringement of the rules of the society.
(2) The rules of the society must specify the maximum fine that may be imposed on a member and a fine that is greater than that maximum cannot be imposed.
(3) A fine exceeding $20 (or such other amount as may be prescribed by the regulations) cannot be imposed unless—
(a) written notice of intention to impose the fine and the reason for it has been given to the member, and
(b) the member has been given a reasonable opportunity to do one of the following, at the member’s choice, for the purpose of showing cause why the fine should not be imposed—
(i) appear before the board in person, with or without witnesses,
(ii) appear before the board by electronic means, with or without witnesses,
(iii) send the board a written statement.
s 79: Am 2024 No 25, Sch 7.5[2].
Division 5 Name and office
80 Registration of name and change of name
(1) The registered name of a co-operative housing body is its name as specified in the body’s rules for the time being registered under this Act.
(2) If the Registrar registers an alteration of the rules of a co-operative housing body changing the name of the body, the Registrar may, on application by the body, amend its certificate of incorporation or issue a new certificate.
(3) A co-operative housing body must publish a change of its name as directed by the Registrar.
Maximum penalty—20 penalty units.
(4) The Registrar may, on application by a co-operative housing body, approve the use by the body of a name other than its registered name subject to such conditions as the Registrar determines. The Registrar may, by written notice given to the body, revoke the approval or vary or revoke conditions to which it is subject.
(5) A co-operative housing body must not use a name other than—
(a) its registered name, or
(b) a name approved under this section.
Maximum penalty—20 penalty units.
(6) A co-operative housing body does not contravene this section by using a name in a way mentioned in section 82 (1) (Abbreviations etc of name).
(7) A co-operative housing body must not fail to comply with the conditions of an approval under this section.
Maximum penalty—20 penalty units.
81 Requirements for and restrictions on names
(1) The name of a co-operative housing society must include the words “co-operative housing society” or “co-op housing society”.
(2) The name of a Starr-Bowkett society must include the word “Starr-Bowkett”.
(3) The name of an association must include the word “co-operative” or “co-op”.
(4) The name of a Starr-Bowkett society or an association must end with the word “Limited” or the abbreviation “Ltd”. The name of a co-operative housing society must not include the word “Limited” or any abbreviation of that word.
(5) The Registrar must not register a proposed co-operative housing body’s rules, or an alteration of rules affecting a co-operative housing body’s name, if the Registrar is of the opinion that the name for the proposed body or body—
(a) is the name of a co-operative housing body, or
(b) is reserved or registered for a financial institution or proposed financial institution under the financial institutions legislation, or
(c) is reserved or registered for a body corporate under the Corporations Act, or
(d) is on the national business names register, or
(e) is likely to be confused with a name mentioned in paragraphs (a)–(d), or
(f) is undesirable.
(6) The Registrar may direct a co-operative housing body to change its name if, through inadvertence or otherwise, the body is registered by a name that the Registrar is satisfied is a name that would not be permissible under this section.
s 81: Am 2001 No 34, Sch 4.11 [11].
82 Abbreviations etc of name
(1) A description of a co-operative housing body is not inadequate or incorrect merely because the body’s name is given using—
(a) the abbreviation Co-op for the word Co-operative, or
(b) the abbreviation Ltd for the word Limited, or
(c) the abbreviation Aust for the word Australian, or
(d) the abbreviation No for the word Number, or
(e) the symbol & for the word and, or
(f) any of those words instead of the corresponding abbreviation or symbol.
(2) In this section—
name of a co-operative housing body means—
(a) its registered name, or
(b) a name approved for its use under section 80 (4) (Registration of name and change of name).
83 Change of name does not affect identity
(1) A change of name of a co-operative housing body does not—
(a) affect the identity of the body, or
(b) affect a right or obligation of the body or of a member or other person, or
(c) render defective legal proceedings by or against the body.
(2) A legal proceeding that might have been continued or started by or against the body by its former name may be continued or started by or against it by its new name.
84 Use of words “co-operative housing society” or “Starr-Bowkett”
(1) In this section—
trade or carry on business, in relation to a person or body, includes—
(a) establishing or using an office for receiving share capital or loan funds, and
(b) advertising for share capital or loan funds, and
(c) providing financial accommodation to members of the person or body residing within this State.
(2) Subject to this section—
(a) a person or body, other than a co-operative housing body, must not trade or carry on business, under a name or title of which the words co-operative housing society or Starr-Bowkett, or any other words, abbreviations or symbols with a similar meaning, form part, and
(b) a person or body, other than a co-operative housing body must not hold out that its trade or business is that of a co-operative housing body.
(3) A person or body may apply to the Registrar for exemption from subsection (2).
(4) The Registrar may, by written notice given to the person or body, grant an exemption for such time and on such terms and conditions as the Registrar determines. An exemption can provide that specified provisions of this Act apply to the person or body as if the person or body were a society, and the specified provisions then apply accordingly (as if a reference in those provisions to a society included a reference to the person or body).
(5) The Registrar may, at any time—
(a) revoke an exemption, or
(b) vary or revoke the terms or conditions of an exemption.
(6) A person who contravenes this section or a condition of an exemption under this section, and every director or other person having the control and management of an unincorporated body contravening this section or the condition, commits an offence.
Maximum penalty (subsection (6)): 100 penalty units.
(7) (Repealed)
s 84: Am 1999 No 2, Sch 4 [16] [17].
85 Publication of name
(1) A co-operative housing body must ensure that its registered name appears in legible letters on—
(a) all business letters, notices (other than advertisements) and other publications (other than advertisements) signed, issued or published by the body, and
(b) all bills of exchange, cheques, promissory notes, endorsements, orders for money or goods, invoices, receipts and other documents signed or issued in the body’s business.
(2) On each advertisement published by a co-operative housing body, the body must use its registered name, or a name approved in relation to the body under section 80.
(3) A co-operative housing body must ensure that its registered name and the words Registered Office are displayed in a conspicuous place and in legible letters, on the outside of its registered office.
(4) A co-operative housing body must ensure that its registered name is displayed in a conspicuous place and in legible letters on the outside of every other office or place in which its business is carried on.
Maximum penalty—20 penalty units.
(5) A co-operative housing body does not contravene subsection (1), (3) or (4) merely because the body, when displaying its registered name, also displays a name approved in relation to the body under section 80.
86 Seal
(1) A society must ensure its registered name appears in legible letters on its seal.
(2) An officer of a society, or any person acting on its behalf, must not use any seal, purporting to be the seal of the society, on which its registered name does not appear in legible letters.
Maximum penalty—20 penalty units.
87 Registered office
(1) A society must have a registered office.
(2) The first registered office of a society is the address that appears in the society’s rules at the time of registration.
(3) A society must give written notice of any proposed change of address to the Registrar.
Maximum penalty—20 penalty units.
(4) At the end of the day of registration by the Registrar of the new address or at the end of such later day as the society specifies in the notice, the new address becomes the registered office of the society.
Division 6
88 (Repealed)
pt 3, div 6: Rep 2010 No 119, Sch 1.8 [1].
s 88: Am 2000 No 93, Sch 1.5 [6]. Subst 2001 No 34, Sch 4.11 [12]. Rep 2010 No 119, Sch 1.8 [1].
Part 4 Management
89 Interpretation
In this Division—
employee, in relation to a society, includes a person, or an employee of a person, who provides the society with services under a management contract.
society includes an association.
90 Board of directors
(1) The business and operations of a society are to be managed and controlled by a board of directors.
(2) Subject to this section, the board may exercise all the powers of the society.
(3) The powers of the board are subject to any restrictions imposed by this Act, applicable standards and the society’s rules.
(4) Every director acting in the society’s business or operations under a resolution duly passed by the board is taken to be acting as the society’s duly authorised agent.
(5) Anything done by or in relation to a director is not invalid merely because of a defect or irregularity in the director’s election or appointment.
91 Meetings
(1) Meetings of a society’s board must be held as often as is necessary for properly conducting the society’s business.
(2) Meetings of the board must be held at intervals of not longer than 3 months.
(3) A quorum at a meeting of the board is the number of directors prescribed by the society’s rules, but must not be less than half the total number of directors.
(4) Subject to this section, a meeting of the board may be conducted in any way prescribed by the society’s rules.
92 Number of directors
The number of directors of a society must not be less than 3.
93 Election or appointment of directors
(1) Subject to this Act, the directors of a society are elected or appointed, hold and vacate office, and retire or are removed from office, as prescribed by the society’s rules.
(2) A director holds office for a term (not longer than 3 years) as is prescribed by the society’s rules.
(3) Despite subsection (2), in relation to a director elected at an annual general meeting of a society, the society’s rules may specify a term of office ending at the start of the third annual general meeting of the society happening after the election.
(4) A director is eligible for re-election or reappointment at the end of the director’s term.
(5) The directors must be elected—
(a) at the annual general meeting of the society, or
(b) by postal voting under the society’s rules, or
(c) in such other way as is prescribed by the society’s rules.
(6) If the directors are elected by postal voting, the society must cause the results of the election to be announced at the society’s next annual general meeting.
94 Employee directors
(1) The members of a society may, under the society’s rules, elect 1 employee of the society nominated by the directors to be a director of the society.
(2) The members of an association may, under the association’s rules, elect one or more employees of the association to be directors of the association, but the number of employees elected as directors must be less than half the total number of directors of the association. Of the directors who constitute a quorum at a meeting of the board of an association, at least half must be directors who are not employees elected as directors.
95 Alternate directors
(1) If authorised by a society’s rules, a director may appoint a person, who is eligible to be a director of the society, to be the alternate director in place of that director.
(2) The alternate director may act as a director in the absence of the director who appointed him or her.
(3) Only a director who is an employee of the society may appoint an employee of the society to be his or her alternate director.
96 Chairperson
(1) A society’s board must elect 1 of its members as chairperson.
(2) An employee of the society is not eligible to be the chairperson.
(3) The chairperson—
(a) must hold office, and
(b) must retire, and
(c) may be removed from office,
as prescribed by the society’s rules.
97 Qualifications of directors
Subject to sections 94 (Employee directors) and 95 (Alternate directors), a person is not eligible to be a director of a society if the person—
(a) is a minor, or
(b) is not—
(i) a member of the society, or
(ii) the representative, appointed under section 74 (Corporate membership), of a body corporate member of the society, or
(c) is an employee of the society, or
(d) is bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or
(e) is prohibited from being a director of a body corporate by the Corporations Act for a reason other than the person’s age, or
(f) has been convicted in the last 10 years—
(i) of an indictable offence in relation to the promotion, formation or management of a body corporate, or
(ii) of an offence involving fraud or dishonesty, or
(iii) of any prescribed offence.
s 97: Am 2001 No 34, Sch 4.11 [13].
98 Vacation of office
(1) The office of a director becomes vacant if the director—
(a) dies, or
(b) becomes a person who, under section 97 (Qualifications of directors), is not eligible to be a director, or
(c) being a director who is the representative, appointed under section 74 (Corporate membership), of a body corporate member of the society and whose eligibility for election to the office was based on being that representative—ceases to be eligible under section 74, or
(d) being a director elected under section 94 (Employee directors)—ceases to be an employee of the society, or
(e) is absent from 3 consecutive ordinary meetings of the board without its leave, or
(f) resigns by written notice of resignation given to the board, or
(g) is 3 months in arrears for an amount payable to the society and has failed to make arrangements for payment satisfactory to the society, or
(h) is removed from office by a resolution under section 99 (Removal of directors), or
(i) completes a term of office.
(2) If a casual vacancy happens in the office of a director as mentioned in subsection (1) (a)–(h), the board may appoint a person who is qualified under section 97 (Qualifications of directors) to fill the vacancy.
(3) The term of office of a director appointed to fill a casual vacancy ends at the start of the next annual general meeting of the society after the appointment.
(4) A director may not be removed from office, and the office of a director does not become vacant, except as provided by this Act.
99 Removal of directors
(1) A co-operative housing society or association may, by special resolution, remove a director before the end of the director’s term of office, despite anything in its rules or in any agreement between it and the director.
(2) A Starr-Bowkett society may, by ordinary resolution, remove a director before the end of the director’s term of office, despite anything in its rules or in any agreement between it and the director.
(3) A resolution under subsection (1) or (2) may be passed only if the society or association has given notice to members specifying the proposed resolution and the day and time of the meeting when it is proposed the resolution will be made (the relevant meeting).
(4) The society or association must also give a copy of the notice to the director.
(5) A society’s or association’s rules may provide for—
(a) the period of notice, and
(b) the way notice may be given to members, and
(c) any other relevant matter.
(6) The director may make written representations to the society or association (of a reasonable length) before the relevant meeting.
(7) The society or association must promptly send to each member a copy of any written representations made by the director if—
(a) the director asks the society or association to do so, and
(b) there is enough time for the copies to be received by the members at least 2 days before the relevant meeting.
(8) At the relevant meeting, the director—
(a) is entitled to be heard on the resolution to remove the director, and
(b) if the director has made written representations under subsection (6) and a copy has not been sent to members under subsection (7)—may require that the representations be read out.
100 Declaration of interest
(1) A director of a society who is or becomes in any way (whether directly or indirectly) interested in a contract, or proposed contract, with the society must declare the nature and extent of the interest to the society’s board under this section.
Maximum penalty—50 penalty units or imprisonment for 2 years, or both.
(2) Subsection (1) does not apply to a contract to provide financial accommodation if the provision of the financial accommodation does not contravene section 103 (Financial accommodation to directors and associates).
(3) In the case of a proposed contract, the declaration must be made—
(a) at the meeting of the board at which the question of entering into the contract is first considered, or
(b) if the director was not at that time interested in the proposed contract—at the next meeting of the board held after the director becomes interested in the proposed contract.
(4) If a director becomes interested in a contract with the society after it is made, the declaration must be made at the next meeting of the board held after the director becomes interested in the contract.
(5) For the purposes of this section, a general written notice given to the board by a director to the effect that the director—
(a) is a member or officer of a specified entity, and
(b) is to be regarded as interested in any contract which may, after the giving of the notice, be made with the entity,
is a sufficient declaration.
(6) A director of a society who holds an office or has an interest in property whereby, whether directly or indirectly, duties or interests might be created that could conflict with the director’s duties or interests as director must, under subsection (5), declare at a meeting of the society’s board the fact and the nature, character and extent of the conflict.
Maximum penalty—50 penalty units or imprisonment for 2 years, or both.
(7) A declaration required by subsection (6) in relation to holding an office or having an interest must be made by a person—
(a) if the person holds the office or has the interest when he or she becomes a director—at the first meeting of the board held after—
(i) the person becomes a director, or
(ii) the relevant facts as to holding the office or having the interest come to the person’s knowledge,
whichever is the later, or
(b) if the person starts to hold the office or acquires the interest after the person becomes a director—at the first meeting of the board held after the relevant facts as to holding the office or having the interest come to the person’s knowledge.
(8) A declaration under this section must be recorded in the minutes of the meeting at which it was made and, unless the board otherwise determines, the director must not—
(a) be present during any deliberation of the board in relation to the matter, or
(b) take part in any decision of the board in relation to the matter.
(9) For the purposes of the making of a determination of the board under subsection (8) in relation to a director who has made a declaration under this section, the director must not—
(a) be present during any deliberation of the board for the purpose of making the determination, or
(b) take part in the making by the board of the determination.
(10) Every declaration must be reported by the board—
(a) to the Registrar immediately after the making of the declaration, and
(b) to the members at the next annual general meeting after the making of the declaration.
(11) A society must, within 3 months after the end of its financial year, lodge with the Registrar a return specifying—
(a) all declarations made to the board during that financial year, and
(b) all declarations in force at the end of the financial year.
Maximum penalty—50 penalty units.
(12) This section is in addition to any rule of law or any provision in a society’s rules restricting a director from having an interest in contracts with the society or from holding offices or having interests involving duties or interests in conflict with the director’s duties or interests as a director.
101 General duty to make disclosure
(1) A director of a society must give written notice to the society—
(a) of such particulars relating to securities, rights, options and contracts as are necessary to enable the society to comply with section 118 (Register of directors etc), and
(b) of particulars of any change relating to the particulars mentioned in paragraph (a), including the consideration (if any) received because of the event giving rise to the change.
(2) A notice under subsection (1) must be given—
(a) if the notice is under subsection (1) (a)—within 14 days after the person—
(i) became a director, or
(ii) became aware that the person had acquired the securities, a relevant interest in the securities or the rights or options, or
(iii) entered into the contracts,
whichever happens last, and
(b) if the notice is under subsection (1) (b)—within 14 days after the person becomes aware of the happening of the event giving rise to the change.
(3) A society must, within 7 days after receiving a notice, send a copy to each of the other directors of the society.
(4) A director or society who contravenes this section commits an offence.
Maximum penalty—50 penalty units.
(5) In any proceeding under this section, a person is, in the absence of evidence to the contrary, to be taken to have been aware at a particular time of a fact or happening of which an employee or agent of the person, being an employee or agent having duties of acting in relation to his or her employer’s or principal’s interests in a security issued by the society concerned, was aware at that time.
102 Certain financial accommodation to officers prohibited
(1) An officer of a society who is not a director of the society must not obtain financial accommodation from the society other than—
(a) with the approval of a majority of the directors, or
(b) under a scheme about providing financial accommodation to officers that has been approved by a majority of the directors.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(2) For the purposes of this section, financial accommodation is taken to be obtained by an officer of a society if it is obtained by—
(a) a proprietary company in which the officer is a shareholder or director, or
(b) a trust of which the officer is a trustee or beneficiary, or
(c) a trust of which a body corporate is trustee if the officer is a director or other officer of the body corporate.
(3) A society must not give financial accommodation to an officer of the society if—
(a) by giving the financial accommodation, the officer would contravene this section, and
(b) the society knows or should reasonably know of the contravention.
Maximum penalty—50 penalty units.
103 Financial accommodation to directors and associates
(1) In this section—
associate of a director means—
(a) the director’s spouse or de facto partner, or
(b) a person when acting in the capacity of trustee of a trust under which—
(i) the director or director’s spouse or de facto partner has a beneficial interest, or
(ii) a body corporate mentioned in paragraph (c) has a beneficial interest, or
(c) a body corporate if—
(i) the director or director’s spouse or de facto partner has a material interest in shares in the body corporate, and
(ii) the nominal value of the shares is not less than 10% of the nominal value of the issued share capital of the body corporate.
(2) For the purposes of this section, a person has a material interest in a share in a body corporate if—
(a) the person has power to withdraw the share capital subscribed for the share or to exercise control over the withdrawal of that share capital, or
(b) the person has power to dispose of or to exercise control over the disposal of the share, or
(c) the person has power to exercise or to control the exercise of any right to vote conferred on the holder of the share.
(3) A society must not provide financial accommodation to a director, or to a person the society knows or should reasonably know is an associate of a director, unless—
(a) the accommodation is—
(i) approved under subsection (4), or
(ii) given under a scheme approved under subsection (4), or
(iii) provided on terms no more favourable to the director or associate than the terms on which it is reasonable to expect the society would give if dealing with the director or associate at arm’s length in the same circumstances, and
(b) the directors have approved the accommodation, at a meeting of the board at which a quorum was present, by a majority of at least two-thirds of the directors present and voting on the matter.
Maximum penalty—50 penalty units.
(4) For the purposes of subsection (3) (a) (i) and (ii), financial accommodation or a scheme is approved if—
(a) it is approved by a resolution passed at a general meeting, and
(b) full details of the accommodation or scheme were made available to members at least 21 days before the meeting.
(5) A director or an associate of a director who obtains financial accommodation given in contravention of subsection (3) commits an offence.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(6) If a director of a society or an associate of a director accepts in payment of a debt owed by a member of the society to the director or associate, any proceeds of financial accommodation provided to the member by the society, this section has effect as if the financial accommodation had been provided to the director or associate.
(7) However, subsection (6) applies only if the financial accommodation is provided to the member on terms more favourable than the terms on which it is reasonable to expect the society would give if dealing with the member at arm’s length in the same circumstances.
(8) In this section, a reference to—
(a) the provision of financial accommodation to a director or an associate of a director, or
(b) the obtaining of financial accommodation by a director or an associate of a director, or
(c) a debt owed to a director or an associate of a director,
includes a reference to a provision of financial accommodation to, or an obtaining of financial accommodation by, the director or associate, or a debt owed to the director or associate, jointly with another person.
s 103: Am 2008 No 23, Sch 3.14 [3].
104 Directors’ remuneration
A director of a society (other than a director who is an employee of the society) must not be paid any remuneration for services as a director other than fees, concessions and other benefits that are approved at a general meeting of the society.
105 Management contracts
(1) In this section—
management contract means a contract or other arrangement under which—
(a) a person who is not an officer of the society agrees to perform the whole, or a substantial part, of the functions of the society, or
(b) a society agrees to perform the whole or a substantial part of its functions—
(i) in a particular way, or
(ii) in accordance with the directions of any person, or
(iii) subject to specified restrictions or conditions.
(2) A society must not enter into a management contract without the prior written approval of the Registrar.
Maximum penalty—50 penalty units.
(3) The Registrar may subject the Registrar’s approval under subsection (2) to conditions.
(4) A management contract entered into in contravention of subsection (2) is void.
(5) A management contract entered into before the commencement of this section becomes void 6 months after that commencement unless the Registrar directs that it continue in operation.
s 105: Am 1999 No 2, Sch 4 [6].
106 Duties of directors and officers
(1) An officer of a society must at all times act honestly in the exercise of the powers and the discharge of the functions of his or her office.
(2) If an officer contravenes subsection (1), the officer commits an offence for which the maximum penalty is—
(a) if because of the contravention—
(i) the society is, or its members are, deceived or defrauded, or
(ii) a creditor of the society, or a creditor of any other person, is deceived or defrauded,
200 penalty units or imprisonment for 5 years, or both, or
(b) if the contravention was committed—
(i) with the intention of deceiving or defrauding the society or its members, a creditor of the society or a creditor of any other person, or
(ii) for any other fraudulent purpose,
but paragraph (a) does not apply—200 penalty units or imprisonment for 5 years, or both, or
(c) in any other case—50 penalty units.
(3) An officer of a society must at all times exercise a reasonable degree of care and diligence in the exercise of the powers and the discharge of the functions of his or her office and in the protection of the interests of members. This subsection does not apply to an employee unless the employee is a director, secretary or executive officer of the society.
Maximum penalty—10 penalty units.
(4) An officer of a society, or a former officer of a society, must not make improper use of information acquired by virtue of his or her position as such an officer to gain, directly or indirectly, an advantage for himself or herself or for any other person, or to cause detriment to the society.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(5) An officer of a society must not make improper use of his or her position as such an officer, to gain, directly or indirectly, an advantage for himself or herself or for any other person, or to cause detriment to the society.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(6) If—
(a) a person is convicted of an offence against this section, and
(b) the court by which the person is convicted is satisfied that the society has suffered loss or damage as a result of the act or omission that constituted the offence,
the court may, in addition to imposing a penalty, order the convicted person to pay compensation to the society of an amount specified by the court.
(7) The order may be enforced as if it were a judgment of that court.
(8) If a person contravenes this section, the society may, whether or not the person has been convicted of an offence against this section in relation to that contravention, recover from the person as a debt due to the society by action in a court having jurisdiction for the recovery of debts up to the amount concerned—
(a) if that person or any other person has made a profit as a result of the contravention—an amount equal to that profit, and
(b) if the society has suffered loss or damage as a result of the contravention—an amount equal to that loss or damage.
(9) This section is in addition to and does not derogate from any other rule of law relating to the duties of directors, officers and employees of a society.
107 Prohibition on transfer of money
(1) Where—
(a) a prosecution has been instituted against a person for an offence against this Act, or
(b) a civil proceeding has been instituted against a person under this Act,
and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an aggrieved person) to whom the person mentioned in paragraph (a) or (b), as the case may be, (in this section called the relevant person), is liable, or may be or become liable, to pay money, whether in relation to a debt, by way of damages or compensation or otherwise, or to account for securities or other property, the Court may, on application by the Registrar or by an aggrieved person, make 1 or more of the following orders—
(c) an order prohibiting a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed,
(d) an order prohibiting a person holding money, securities or other property, on behalf of the relevant person, or on behalf of an associate of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, securities or other property, is or are held,
(e) an order prohibiting the taking or sending out of Australia, by a person of money of the relevant person or of an associate of the relevant person,
(f) an order prohibiting the taking, sending or transfer by a person of securities or other property of the relevant person, or of an associate of the relevant person—
(i) from a place in this State to a place outside this State (including the transfer of securities from a register in this State to a register outside this State), or
(ii) from a place in Australia to a place outside Australia (including the transfer of securities from a register in Australia to a register outside Australia),
(g) an order appointing—
(i) if the relevant person is an individual—a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person, or
(ii) if the relevant person is a body corporate—a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person,
(h) if the relevant person is an individual—an order requiring that person to deliver up to the Court his or her passport and any other documents the Court considers appropriate,
(i) if the relevant person is an individual—an order prohibiting that person from leaving Australia without the consent of the Court.
(2) A reference in subsection (1) (f) or (g) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example—
(a) as trustee for, as nominee for, or otherwise on behalf of or on account of, another person, or
(b) in a fiduciary capacity.
(3) An order under subsection (1) prohibiting conduct may prohibit the conduct either absolutely or subject to conditions.
(4) Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
(5) On an application under subsection (1), the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (4), to give an undertaking as to damages.
(6) Where the Court has made an order under this section on a person’s application, the Court may, on application by that person or by any person affected by the order, make a further order discharging or varying the first-mentioned order.
(7) An order under subsection (1) or (4) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.
(8) This section has effect subject to the Bankruptcy Act 1966 of the Commonwealth.
(9) A person must not contravene an order by the Court under this section that is applicable to the person.
Maximum penalty (subsection (9)): 200 penalty units or imprisonment for 5 years, or both.
108 Unlawfully acting as director
(1) A person, who is not the director of a society, or the alternate director of such a director, must not purport to act as a director of a society.
(2) A director of a society must not permit a person who is not a director of the society, or the alternate director of such a director, to purport to act as a director of the society.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
109 Annual general meeting
(1) The first annual general meeting of a society must be held within 18 months after it is registered under this Act.
(2) The second and every subsequent annual general meeting of a society must be held within 5 months after the close of its financial year, or within any further time allowed by the Registrar or prescribed.
(3) A society that fails to hold an annual general meeting as required by this section commits an offence.
Maximum penalty (subsection (3)): 20 penalty units.
110 Special general meeting
(1) The board of a society may convene a special general meeting of the society.
(2) The board of a society must immediately proceed to convene a special general meeting of the society if required to do so by not less than the number of members prescribed for that purpose by the society’s rules.
111 Quorum
(1) A general meeting of a society must not deal with an item of business unless a quorum is present.
(2) Subsection (1) does not apply to an item of business that may be dealt with by postal voting under the society’s rules.
(3) A quorum is as prescribed by the society’s rules.
112 Notice of meeting
(1) Subject to subsection (2)—
(a) written notice of an annual general meeting must be given to each member of the society at least 14 days before the date of the meeting, and
(b) written notice of a special general meeting must be given to each member of the society at least 7 days before the date of the meeting.
(2) If the society’s rules so provide, notice of an annual general meeting or special general meeting may be given to the members of the society by advertisement published in a newspaper (whether published in print or on a publicly accessible website) having a circulation generally in the area in which the society operates.
(3) (Repealed)
(4) The failure by a member of a society to receive notice of a general meeting required to be given to the member by this Act does not invalidate the meeting.
(5) A society that fails to give notice of an annual general meeting or a special general meeting in accordance with this section commits an offence.
Maximum penalty—20 penalty units.
s 112: Am 2017 No 63, Sch 2.2 [4]; 2024 No 25, Schs 5.3[1] [2], 6.8[1].
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Division 1 Introductory
1 Name of Act
This Act is the Co-operative Housing and Starr-Bowkett Societies Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
2A Prohibition on formation or registration of new societies and admission of new members
Despite any other provision of this Act—
(a) a society cannot be formed or registered on or after the commencement of this section, and
(b) a Starr-Bowkett society cannot admit any person to membership on or after that commencement.
s 2A: Ins 2018 No 79, Sch 2.1 [1].
Division 2 Interpretation
3 Definitions
(1) In this Act—
accounting records include—
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry, and
(b) documents and records that record such entries, and
(c) such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up.
accounting standard has the meaning given by section 9 of the Corporations Act.
accounts means statements of financial performance and statements of financial position, and includes statements, reports and notes (other than auditors’ reports or directors’ reports) attached to or intended to be read with any of those statements.
advertisement includes matter that is not in writing but because of the form or context in which it appears conveys a message.
affairs, in relation to a body corporate, has the meaning given by section 53 of the Corporations Act.
approved form means a form approved by the Registrar.
association means a body registered as an association under this Act.
bank means—
(a) a bank as defined by section 5 of the Banking Act 1959 of the Commonwealth, or
(b) a bank constituted under a law of a State.
board, in relation to a co-operative housing body, means the board of directors of the body.
body includes an entity.
body corporate means any body corporate whether formed or incorporated within or outside this State, but does not include—
(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown, or
(b) a corporation sole.
borrow means to obtain financial accommodation.
certificate of confirmation has the meaning given by section 150 (Definitions).
company means a company incorporated, or taken to be incorporated, under the Corporations Act.
consolidated accounts, in relation to a co-operative housing body, means all of the following—
(a) a consolidated statement of financial performance that section 129 (Group accounts) requires to be made out in relation to a financial year of the body,
(b) a consolidated statement of financial position that section 129 (Group accounts) requires to be made out in relation to the financial year,
(c) statements, reports and notes (other than a directors’ report) attached to, or intended to be read with, that consolidated statement of financial performance or consolidated statement of financial position.
co-operative housing body means—
(a) a society, or
(b) an association.
co-operative housing society means a body registered under this Act as a co-operative housing society.
Corporations Act means the Corporations Act 2001 of the Commonwealth.
Court means the Supreme Court, or a Supreme Court Judge, of this State.
director has the meaning given by section 5.
economic entity has the meaning given by section 5A.
entity has the meaning given by section 5A.
executive officer, in relation to a co-operative housing body or entity, means a person (by whatever name called) who is concerned, or takes part, in the management of the body or entity.
expert, in relation to a matter, means an independent person whose profession or reputation gives authority to a statement made by the person in relation to the matter.
financial institution means a building society or credit union under the financial institutions legislation.
financial institutions legislation has the same meaning as in the AFIC (NSW) Code.
friendly society means a friendly society under the Friendly Societies Act 1989.
group means an economic entity of which a co-operative housing body is a part.
group accounts, in relation to a holding society, means a set of consolidated accounts for the group in relation to which the society is the holding society.
holding body corporate means a body corporate that is the holding body corporate of another body corporate.
holding society has the meaning given by section 7.
inspector means a person authorised under section 30 (Inspectors).
national business names register has the meaning given by the Corporations Act.
officer has the meaning given by section 9 (Interpretation—meaning of “officer”).
profit or loss means—
(a) in relation to an entity—the profit or loss resulting from operations of the entity, and
(b) in relation to 2 or more entities or an economic entity constituted by 2 or more entities—the profit or loss resulting from operations of those entities.
registered company auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Act.
Registrar—see section 47A.
related body corporate has the meaning given by section 10.
securities has the meaning given by section 92 of the Corporations Act.
services corporation means a body corporate declared to be a services corporation under section 13.
share means a share in the share capital of a body corporate.
society means a co-operative housing society or a Starr-Bowkett society.
standard means a standard that is continued in force under clause 21 of Schedule 5.
Starr-Bowkett society means a body registered under this Act as a Starr-Bowkett society.
State means a State or Territory.
subsidiary has the meaning given by section 11.
transferee society has the meaning given by section 150 (Definitions).
transferor society has the meaning given by section 150 (Definitions).
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Schedule 1 (General interpretative provisions) has effect.
(3) Notes in the text of this Act do not form part of this Act.
(4) A reference in this Act to a provision of the Corporations Act that is applied by or under this Act (or a part of this Act) is a reference to that provision to the extent that it is declared to apply to a matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 as a law of this State.
s 3: Am 1999 No 2, Sch 4 [3] [4]; 2000 No 93, Sch 1.5 [1]; 2001 No 34, Sch 4.11 [1]–[8]; 2001 No 56, Sch 2.11 [1] [2]; 2008 No 23, Sch 3.14 [1]; 2010 No 19, Sch 3.24 [1]; 2016 No 27, Sch 1.9 [1] [2].
4 Interpretation—meaning of “associate”
(1) This section applies for the purposes of this Act other than section 103 (Financial accommodation to directors and associates).
(2) A person is an associate of another, or is associated with another, if—
(a) they are partners, or
(b) one is a spouse, de facto partner, parent or child of the other, or
(c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust, or
(d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body or entity, or
(e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body or entity, or
(f) they are related bodies corporate, or
(g) a relationship of a prescribed kind exists between them, or
(h) a chain of relationships can be traced between them under any one or more of the above paragraphs.
Note.
“De facto partner” is defined in section 21C of the Interpretation Act 1987.
s 4: Am 2008 No 23, Sch 3.14 [2]; 2010 No 19, Sch 3.24 [2].
5 Interpretation—meaning of “director”
(1) Subject to subsection (2), for the purposes of this Act, a reference to director, in relation to a body corporate, includes a reference to—
(a) a person occupying or acting in the position of director of the body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position, and
(b) a person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, and
(c) in the case of a body corporate incorporated outside Australia—
(i) a member of the body’s board, and
(ii) a person occupying or acting in the position of member of the body’s board, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position, and
(iii) a person in accordance with whose directions or instructions the members of the body’s board are accustomed to act.
(2) A person is not to be regarded as a person in accordance with whose directions or instructions—
(a) a body corporate’s directors, or
(b) the members of the board of a body corporate incorporated outside Australia,
are accustomed to act merely because the directors or members act on advice given by the person in the proper performance of the functions attaching to—
(c) the person’s professional capacity, or
(d) the person’s business relationship with the directors, the members of the board or the body.
5A Interpretation—meaning of “economic entity” and “entity”
If an accounting standard defines the term economic entity or entity the definition in the accounting standard has effect for the purposes of this Act. Otherwise, the term has the meaning prescribed by the regulations.
Note.
Accounting Standard AASB 1024:Consolidated Accounts defines economic entity to mean “a group of entities comprising the parent entity and each of its subsidiaries” and defines entity to mean “any legal, administrative or fiduciary arrangements, organisational structure or other party (including a person) having the capacity to deploy scarce resources in order to achieve objectives”.
s 5A: Ins 2000 No 93, Sch 1.5 [2].
6 Interpretation—reference to a holding body corporate
A reference in this Act to the holding body corporate of another body corporate is a reference to a body corporate of which the other body corporate is a subsidiary.
7 Interpretation—meaning of “holding society”
A society is a holding society if the society—
(a) controlled another entity during all or part of a financial year of the society, or
(b) controlled another entity at the end of a financial year of the society.
8 Interpretation—meaning of “making a decision”
A reference in this Act to the making of a decision includes a reference to—
(a) making, suspending, revoking or refusing to make an order or determination, or
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, or
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, or
(d) imposing a condition or restriction, or
(e) making a declaration, demand or requirement, or
(f) retaining, or refusing to deliver up, an article, or
(g) doing or refusing to do anything else.
9 Interpretation—meaning of “officer”
(1) Subject to subsection (2), for the purposes of this Act, officer, in relation to a body corporate or entity, includes—
(a) a director, secretary, executive officer or employee of the body or entity, and
(b) a receiver and manager, appointed under a power contained in an instrument, of property of the body or entity, and
(c) an official manager, or deputy official manager, of the body or entity, and
(d) a liquidator of the body or entity appointed in a voluntary winding-up of the body or entity, and
(e) a trustee or other person administering a compromise or arrangement made between the body or entity and other persons.
(2) None of the following is an officer of the body corporate or entity—
(a) a receiver who is not also a manager,
(b) a receiver and manager appointed by a court,
(c) a liquidator appointed by a court.
10 Interpretation—meaning of “related body corporate”
If a body corporate is—
(a) the holding body corporate of another body corporate, or
(b) a subsidiary of another body corporate, or
(c) a subsidiary of the holding body corporate of another body corporate,
the first body corporate and the other body corporate are related to each other.
11 Interpretation—meaning of “subsidiary”
(1) Subject to subsection (5), a body corporate is a subsidiary of a co-operative housing body if—
(a) the co-operative housing body—
(i) controls the composition of the body corporate’s board of directors, or
(ii) is in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the body corporate, or
(iii) holds more than 50% of the issued share capital of the body corporate (other than any part of that issued share capital that carries no right to participate beyond a spec
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