National Australia Bank and Bank of New Zealand Act 1997

Key statutory concepts are defined in s 3 and operate throughout the Act. They structure what transfers, what is excluded, who the actors are, and what registers and certificates can do.

Undertaking: The Act uses the term undertaking to capture the BNZ banking business carried on in Victoria and provides that this undertaking is divested from BNZ and vested in National by Part 2, s 6(1). The Act separately excludes the employment of BNZ employees from that vesting (s 6(2)).

Excluded asset and excluded liability: The Act defines excluded asset to include documents BNZ is required to keep under the Corporations Law or any other law, and assets listed in a certificate signed by the Chief Executive Officer of National and received by the Treasurer before the commencement of Part 2 (s 3). Excluded liability is any liability listed in such a certificate. These definitions make the list of excluded matters a function of pre-commencement certificates from National’s CEO delivered to the Treasurer, which injects a time-sensitive, documentary mechanism into what is and what is not transferred.

Liabilities and property: The Act treats liabilities broadly as duties, obligations and incidents of every description, whether actual, contingent or prospective, but excluding duties related to excluded assets (s 3 definition of liabilities; see also s 3 excluded asset). Property is defined to include assets, securities, rights and powers of every description (s 3).

Certificates and conclusive evidence: The Chief Executive Officer of National may issue signed certificates certifying matters in relation to Part 2 (s 18). Certificates are given strong evidentiary effect. A certificate under the Act is conclusive evidence of the matters certified for all purposes and in all courts and tribunals, except so far as the contrary is established (s 23(1)). A document purporting to be a certificate under the Act is taken to be such a certificate unless the contrary is established (s 23(2)).

Transitional mechanisms: Part 2 contains transitional rules converting contractual relationships, securities and customer instructions into National’s rights and obligations, subject to the exclusions noted above (s 7, s 8). Securities that extend to future advances are transferred to National and remain available as security for future advances by National, subject to any agreement between National and the customer (s 8(1)(b)). Negotiable instruments and orders for payment expressed to be drawn on BNZ are treated as if drawn on National after commencement (s 8(1)(e)). Information about customers held by BNZ becomes available to and may be used by National (s 8(1)(f)).

Registers and registration: The Act addresses registrational consequences. Land vested in National is to be treated as vested for the purposes of Transfer of Land Act 1958 and the Registrar of Titles is required to make necessary recordings upon request and payment of fees (s 19, s 20(1)). For other property with registers, a CEO certificate lodged with the relevant person or authority is to be taken to have satisfied transfer requirements, and the authority must amend its register as requested (s 22). For charges, s 21 provides that s 268(1) of the Corporations Law is taken to have been complied with if a certificate signed by National’s CEO is lodged with the Australian Securities Commission stating the undertaking has vested in National.

Service and procedural consequences: Service on National is deemed to be service on BNZ and vice versa (s 16). Pending legal proceedings are not abated by the transfer and may be continued and enforced by or against National as if BNZ remained party (s 9(2)), while the court can order judgment against both BNZ and National at a party’s request (s 9(3)). Parties can seek leave to substitute BNZ for National in proceedings concerning excluded assets or BNZ employees (s 10). Books and documents of BNZ are admissible in proceedings for or against National, and BNZ’s books of account are, for the purposes of the Evidence Act 2008, deemed to be part of National’s records (s 11(1)-(2)).

Territorial scope and Crown: The Act binds the Crown in right of Victoria and, insofar as legislative power permits, in all capacities (s 4). It applies both within and outside Victoria to the full extent of Victoria’s extra‑territorial legislative power, but expressly does not apply to any part of BNZ’s undertaking carried on or situated wholly outside Australia (s 5(1)-(3)).

Preservation of banking law obligations: The Act expressly does not exempt National or BNZ from written law relating to companies carrying on the business of banking, except to the extent an exemption is directly contemplated by or is a necessary consequence of the Act (s 24).

These concepts combine to create a statutory conversion of BNZ’s Victorian banking business into assets, rights and obligations enforceable by National, with a mix of administrative certificates, registrational mechanisms and procedural deeming provisions to avoid re-papering, subject to narrowly defined exclusions and with a Treasurer-determined payment in lieu of State taxes and charges.

The Act enumerates and creates legal effects on a defined set of stakeholders. Those stakeholders include National, BNZ, BNZ employees, BNZ customers and depositors, security holders and creditors, registrars and registration authorities, the Treasurer, courts and tribunals, and relevant regulators identified in the Act.

National Australia Bank Limited: National is the recipient of BNZ’s banking business as vested by Part 2, s 6(1). National acquires contractual rights and obligations previously held by or against BNZ, subject to the exclusions and transitional rules (s 7(1), s 8). National is given administrative functions under the Act, in particular the ability to issue certificates by the Chief Executive Officer to facilitate registrations and compliance across multiple registers (s 18, s 21, s 22).

Bank of New Zealand (BNZ): BNZ is the transferor of its undertaking. The Act removes the banking business from BNZ as described in s 6(1). BNZ remains a named entity for certain purposes. Legal proceedings that were against or by BNZ may be continued against National under s 9(2), and courts can, at a party’s request, enter judgments against both BNZ and National (s 9(3)). For matters concerning excluded assets or BNZ employees, s 10 permits substitutional amendments to pleadings where National was made a party in error.

BNZ employees: Employment is explicitly excluded from the generic vesting of the undertaking (s 6(2); see also s 7(2)(b) and s 9(1)(d)). The Act states that each BNZ employee is to be engaged exclusively in the provision of services to National and is subject to the direction and control of National officers responsible for the business in Victoria (s 13(1)). Subsection (2) qualifies that engagement by making it subject to any applicable law or determination relating to the employee (s 13(2)). Importantly, employee benefits, provident, superannuation and retirement funds remain excluded from the general contractual vesting (s 7(2)(c), s 9(1)(e)).

Customers and depositors: The customer or depositor relationship with BNZ becomes a relationship with National, giving rise to the same rights and duties including rights of set-off. Instructions, orders, mandates and authorities given by customers to BNZ are deemed given to National unless revoked (s 8(1)(a)). Information held by BNZ relating to customers is available to National and may be used by National (s 8(1)(f)).

Security holders and creditors: Securities held by BNZ as security for debts or liabilities are transferred to National and are available as security for the debts and liabilities to National, including future advances where the security extended to future liabilities, subject to any agreement between National and the secured party (s 8(1)(b)-(c)). Section 8(2) provides reciprocal entitlements where securities covered money on deposit either with BNZ or National immediately before commencement.

Registrars and registration authorities: The Registrar of Titles, Registrar-General and any person or authority keeping registers for property types are affected. They are required to make recordings and entries requested because of the operation of the Act on production of instruments and payment of fees (s 20(1)-(2), s 22(c)-(d)). Section 17(1) relieves third parties dealing with National or BNZ from the duty to inquire into whether property is an excluded asset, but leaves National liable to BNZ in respect of anything done in relation to an excluded asset (s 17(1)-(3)).

The Treasurer and State: The Treasurer receives a payment from National in lieu of State taxes, duties and charges as a result of the transfer, with the amount to be determined in the Treasurer’s opinion and according to principles the Treasurer thinks appropriate (s 14(1)-(2)). The Treasurer issues a certificate when satisfied the sum has been paid (s 14(3)).

Courts, tribunals and regulators: Courts and tribunals must accept that pending proceedings are not abated because of the Act and that National may continue proceedings in its own name (s 9(2)). They may, on request, enter judgment against both BNZ and National (s 9(3)). The Act also contemplates lodging a Chief Executive Officer certificate with the Australian Securities Commission to satisfy a Corporations Law registration requirement for charges (s 21). The Act’s s 11(2) expressly deals with the evidentiary status of BNZ’s books under the Evidence Act 2008.

Other persons dealing with National or BNZ: Section 17(1) immunises third parties dealing with National or BNZ from having to inquire whether property is an excluded asset, including registrars and those examining title. This alters the due diligence burden on counterparties.

Together, these provisions shift legal rights, administrative burdens and evidentiary presumptions from BNZ to National for the Victorian banking undertaking, while preserving particular exclusions for employee relationships and named categories of asset or liability defined by pre-commencement CEO certificates. The Treasurer’s role in determining the in-lieu payment creates a fiscal interface with State revenue mechanisms. Registrars and the Australian Securities Commission are tasked with mechanistic recording roles predicated on CEO certificates and documentary production.

The Act creates specific duties and rights for the principal actors: National, the Chief Executive Officer of National, the Treasurer, registrars and courts. It also confers rights on customers, security holders and third parties dealing with BNZ or National.

Duties placed on National: National must pay to the Treasurer, in lieu of State taxes, duties and charges that it would otherwise be liable for by reason of the transfer of BNZ’s undertaking in Victoria, a sum which the Treasurer, in his or her opinion, considers equal to those taxes, duties and charges (s 14(1)). National must comply with any certificate and lodgement processes set out in the Act, in particular lodging CEO-signed certificates with the Treasurer before commencement of Part 2 where required to identify excluded assets or excluded liabilities (s 3 definition; timing requirement in definition), lodging certificates with the Australian Securities Commission for the purposes of s 21, and providing CEO certificates to registrars and registration authorities to effect entries (s 21, s 22).

Rights conferred on National: National acquires BNZ’s enforceable contractual rights and obligations under s 7(1), except for excluded categories listed in s 7(2). National becomes entitled to the same rights, priorities and subject to the same liabilities, in relation to securities transferred under the Act, as BNZ previously had (s 8(1)(b)-(c)). National is entitled to use information held by BNZ relating to customers or depositors (s 8(1)(f)). Certificates issued by National’s Chief Executive Officer provide National with effective evidentiary tools to satisfy statutory registration and regulatory processes across multiple domains (s 18, s 21, s 22).

Chief Executive Officer certificates: The CEO has an explicit power to certify matters relating to Part 2 (s 18). Such certificates serve multiple functions. A certificate listing excluded assets or excluded liabilities, signed by the CEO and received by the Treasurer before commencement, determines what is excluded from the general vesting (s 3). A certificate lodged with the Australian Securities Commission is taken to satisfy s 268(1) of the Corporations Law in respect of charges held by National by virtue of the Act (s 21). For other types of property where a statutory register exists, the CEO’s certificate is to be taken as fulfilling transfer requirements under that written law and the register keeper must amend the register upon production (s 22(c)-(d)).

Treasurer’s role: The Treasurer must determine the amount payable in lieu of State taxes and charges under s 14(2), applying such principles as the Treasurer thinks appropriate. The Treasurer must then provide a certificate to National when satisfied the payment due has been paid (s 14(3)). The Act gives the Treasurer final administrative responsibility for quantifying and certifying the tax payment for the State.

Registrars and registration authorities: The Registrar of Titles is required, upon request and on delivery of any relevant instrument or document and payment of relevant fees, to make necessary recordings in the Register arising from the Act (s 20(1)). The Registrar-General must make all entries on records of enrolment of Crown grants and any memorials relating to land as necessary (s 20(2)). Other authorities keeping registers must accept a CEO certificate as constituting compliance with transfer requirements and must amend their registers upon request and production of any relevant instrument (s 22(c)-(d)).

Procedural and evidentiary duties for courts and litigants: Pending actions, arbitrations and regulatory inquiries involving BNZ may be continued and enforced by or against National without abatement or prejudice (s 9(2)). Courts may, at a party’s request, enter judgment against both BNZ and National (s 9(3)). Where National has been made a party in matters concerning excluded assets or BNZ employees, s 10 allows parties to seek leave to amend pleadings substituting BNZ for National, and expressly prevents costs orders against those parties for making the substitution (s 10(1)-(3)). Books and documents of BNZ are admissible as evidence in proceedings concerning National; BNZ’s books of account are deemed to form part of National’s records for the purposes of the Evidence Act 2008 (s 11(1)-(2)).

Rights of third parties and protected statuses: Persons dealing with National or BNZ are not required to investigate whether property subject to a dealing is an excluded asset, and registrars or other persons registering or certifying title are not to be concerned to see or enquire whether property is an excluded asset (s 17(1)). Certificates issued under the Act are conclusive evidence of the matters they certify, subject to being rebutted on evidence to the contrary (s 23). Negotiable instruments and orders for payment expressed to be drawn by, on or payable at BNZ locations have the same effect as if drawn by, on or payable at National (s 8(1)(e)).

Limitations and preserved rights: The Act expressly disapplies the vesting in relation to BNZ employees and certain funds relating to employees (s 6(2), s 7(2)(b),(c), s 9(1)(d),(e)). Section 24 preserves obligations under written banking laws, so neither National nor BNZ is exempted from statutory banking law requirements except where the Act directly contemplates an exemption or where an exemption is a necessary consequence of the Act (s 24). Where a dealing is entered into involving an excluded asset or excluded liability, it is deemed that National had full power and authority to enter into that dealing as if the asset or liability had vested in National under Part 2, for the benefit of the person who dealt with National (s 17(3)).

In short, obligations for fiscal payment and administrative certification are primarily placed on National and the Treasurer. National gains extensive rights to enforce and manage the transferred undertaking, uses CEO certificates to achieve registrational convenience, and is bound to remain subject to the banking laws that still apply. Courts and registrars are tasked with mechanistic roles to give legal effect to the transfer, while the Act protects third parties who deal in good faith from investigatory obligations about excluded assets.

The Act does not create new criminal sanctions or explicit civil penalty regimes within its text. Its enforcement architecture is primarily civil and administrative, relying on continuation of proceedings, registrational mechanisms, and the conclusive evidentiary status of certificates.

Civil enforcement by continuation of proceedings: Sections 9(1)-(3) provide the mechanism for enforcement of monetary and other claims that arise from the BNZ banking business. Any action, arbitration, regulatory inquiry or proceeding that is pending or existing at the commencement and any cause of action arising after commencement in respect of a contract made by BNZ or anything done or omitted by BNZ before commencement, may be prosecuted and continued and enforced by or against National, in National’s own name, as if the Act had not been enacted (s 9(1)-(2)). This provision prevents abatement or discontinuance of litigation due solely to the statutory transfer, thereby preserving litigants’ remedies. Moreover, at a party’s request, a court or tribunal may make or enter judgment, order or award for payment against both BNZ and National (s 9(3)). The mechanism therefore allows claimants to pursue recovery from National and, where appropriate, BNZ concurrently.

Procedural relief and substitution: For proceedings relating to excluded assets or BNZ employees where National has been made a party, s 10 allows any party to seek leave to amend pleadings substituting BNZ for National. No costs order is to be made against a party who makes that amendment and the proceeding is to continue as if BNZ had originally been made a party (s 10(1)-(3)). This reduces procedural friction and prevents inadvertent prejudice to parties dealing with the organisational change.

Evidentiary enforcement: The Act strengthens evidence for National by making BNZ books and documents admissible in evidence for or against National (s 11(1)), and by deeming BNZ’s books of account to form part of National’s records for the purposes of the Evidence Act 2008 (s 11(2)). Section 23 gives certificates issued under the Act conclusive effect in courts and tribunals, except to the extent the contrary is established. A document purporting to be a certificate is taken to be such a certificate unless the contrary is established (s 23(1)-(2)). These provisions lower the evidentiary threshold for National to enforce claims, and place the onus on other parties to rebut certificates or books if they assert contrary facts.

Administrative enforcement via registrars and Treasurer: The Registrar of Titles and the Registrar-General are required to make necessary entries on production of instruments and payment of fees (s 20(1)-(2)). Other register keepers must treat a CEO certificate as satisfying their statutory transfer requirements and must amend registers accordingly on request and delivery of relevant instruments (s 22(c)-(d)). The Treasurer is empowered to determine and certify the payment in lieu of State taxes and charges by National, and to provide a certificate when satisfied payment has been made (s 14(1)-(3)). These administrative duties provide mechanisms through which the legal status of assets and charges is recorded and can be relied on by third parties.

Absence of express penalties: The Act contains no explicit penalty provisions for breach of the Act’s operative clauses. Enforcement is thus civil and administrative rather than criminal. For example, if National failed to pay the sum in lieu to the Treasurer, the Act does not set out a specific statutory penalty; the Treasurer’s remedial or recovery mechanisms would need to be pursued under applicable State revenue or contract law, but the Act itself does not prescribe a penal sanction.

Interplay with other enforcement regimes: Section 24 preserves the application of written laws relating to companies carrying on the business of banking. That preserves existing statutory enforcement frameworks relevant to banking conduct, prudential regulation and corporate obligations. Consequently, National and BNZ remain subject to applicable banking laws and any sanctions they contain, unless an exemption is directly contemplated by the Act or necessarily follows from it (s 24).

Operational consequences for litigants and registrars: The Act imposes a duty on courts and tribunals to accept continuation of proceedings in National’s name. Registrars and other officials have a duty to make entries and recordings upon production of instruments and certificates. Certificates are highly authoritative evidence and can be decisive in administrative and civil enforcement contexts, subject to the possibility of rebuttal.

In summary, enforcement under the Act is achieved by continuation and substitution in civil proceedings, conclusive certificates and administrative recording mechanisms. The Act does not itself introduce criminal penalties, but it preserves and interacts with other statutory enforcement regimes applicable to banking and corporate activity.

The Act is designed to operate in conjunction with, and to affect, a set of existing laws and statutory registers. It contains express cross-references and mechanisms intended to avoid re‑papering and to ensure registrational and evidentiary compliance under other regimes.

Corporations Law and corporate registers: The Act engages the Corporations Law. Section 3’s definition of excluded asset includes documents BNZ is required to keep under the Corporations Law. Section 21 directly references s 268(1) of the Corporations Law and provides that compliance with s 268(1) is to be taken to have occurred in respect of all charges that National becomes the holder of by virtue of the Act if a certificate signed by National’s CEO is lodged with the Australian Securities Commission stating the undertaking has become vested in National. The Act therefore creates an administrative shortcut for charge registration formalities under the Corporations Law via an ASC certificate.

Transfer of Land Act 1958 and land registers: Where land of which BNZ is the registered proprietor is by virtue of Part 2 vested in National, s 19 deems National to be the registered proprietor for the purposes of the Transfer of Land Act 1958 and allows land to be dealt with accordingly. Section 20(1) obliges the Registrar of Titles to make necessary recordings in the Register on request and on delivery of relevant instruments and fees. The Registrar-General is likewise obliged to make entries on records of enrolment and memorials upon production (s 20(2)). Section 22 provides a general mechanism for other registers to be amended on production of a CEO certificate.

Evidence Act 2008 and admissibility of BNZ records: Section 11(2) provides that BNZ’s books of account are, for the purposes of the Evidence Act 2008, deemed to form part of the records belonging to or kept by National. Section 11(1) makes any book or document that would have been evidence for or against BNZ admissible for the same matter for or against National. These provisions address evidentiary continuity for litigation and administrative proceedings.

Australian Securities Commission: The Act refers to the Australian Securities Commission as the place where CEO certificates should be lodged to satisfy Corporations Law formalities about charges (s 21). The ASC reference indicates the Act’s practical interaction with national corporate registries and reconciles the statutory vesting with national registration obligations. The Act’s endnotes and amendment history refer to subsequent legislative instruments that change the broader evidence regime, including the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, which amended s 11(2) (see Endnotes Table of Amendments).

State taxes and revenue law: Section 14 creates an explicit fiscal engagement with State taxes, duties and charges. National is required to pay an amount in lieu of State taxes, duties and charges resulting from the transfer in Victoria, with the amount determined by the Treasurer in the Treasurer’s opinion and in accordance with such principles as the Treasurer thinks appropriate (s 14(1)-(2)). This creates an interface with State revenue law and executive discretion, rather than prescribing specific tax law mechanics within the Act.

Banking law and prudential regulation: Section 24 preserves the application of written laws relating to companies carrying on the business of banking, except where an exemption is directly contemplated by or is a necessary consequence of the Act. The Preamble records that Reserve Bank of Australia conditions compelled BNZ to surrender its authority to carry on banking business in Australia. The Act therefore effects a structural transfer consistent with those regulatory conditions, but does not itself displace the reach of written banking statutes or prudential regimes unless explicitly necessary.

Crown and extra-territorial scope: The Act binds the Crown in right of Victoria and, so far as parliamentary legislative power permits, the Crown in all capacities (s 4). The Act applies both within and outside Victoria to the extent of Victoria’s extra-territorial legislative power (s 5(1)-(2)), but explicitly does not apply to parts of BNZ’s undertaking carried on or situated wholly outside Australia (s 5(3)). This creates a territorial limitation with extraterritorial reach limited by constitutional power.

Interaction with industrial and employment law: Although the Act engages extensively with contractual transfers, it expressly excludes the employment of BNZ employees from the vesting of the undertaking (s 6(2), s 7(2)(b), s 9(1)(d)). Section 13 contemplates that BNZ employees are to be engaged exclusively in the provision of services to National and subject to National’s direction in Victoria, but subsection (2) states that subsection (1) applies subject to any law or determination relating to the employment of the person (s 13(1)-(2)). The Act therefore leaves intact applicable industrial, employment and superannuation law, while creating a commercial arrangement for staffing in National’s Victorian operations.

Registers and administrative law: For property other than land and charges, s 22 provides that where a statutory register exists, a CEO certificate is to be taken to satisfy statutory transfer requirements and that the register keeper must amend the register upon request. This reduces friction across multiple statutory registration regimes, but places reliance on the CEO certificate as the operable document.

Overall, the Act operates as a purposive statutory converter that relies on and interacts with corporate, property, evidentiary, registration and revenue statutes and administrative mechanisms to effect the transfer. It creates normative shortcuts (CEO certificates, registrar duties) and evidentiary presumptions to avoid re-papering while preserving the operation of other statutory regimes, subject to narrowly defined exclusions. Practitioners should treat the Act as an instrument that overlays existing statutory regimes with administrative mechanisms that create definitive legal consequences when exercised.

The Act’s endnotes record its adoption and a single recorded amendment in the provided text. The Act was assented to on 29 April 1997 and came into operation as follows: Part 1 (sections 1-5) and section 14 on 29 April 1997; the rest of the Act commenced on 1 May 1997, as set out in the Government Gazette (Endnotes, General Information). The Preamble and s 1 state the Act’s purpose and the legislative history notes the second reading speech dates in the Victorian Parliament (Legislative Assembly 20 March 1997; Legislative Council 22 April 1997) and the long title for the Bill.

The Table of Amendments in the Endnotes identifies the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (No. 69/2009) as an amending instrument. Its assent date was 24 November 2009 and its commencement date for the amendment to this Act was 1 January 2010 (see Table of Amendments). The 2009 amendment substituted s 11(2) and repealed s 11(3) in the original text; the consolidated version presented here reflects those changes and contains s 11(2) as amended. The Endnotes also cross-reference that s 3 and the Preamble have explanatory links to the Corporations (Ancillary Provisions) Regulations 2001 and other explanatory materials (Endnotes, Explanatory Details).

No other amendments are set out in the Act text or the Endnotes provided. The Act therefore appears to have had a limited amendment history up to the date shown in the version headnote (version incorporating amendments as at 1 January 2010). The specific amendment noted dealt with evidentiary consequences, aligning the Act with the Evidence Act 2008 regime.

For practitioners, the key amendment to note is the 2009 change to s 11(2), which treats BNZ’s books of account as records belonging to or kept by National for the purposes of the Evidence Act 2008. This aligns the evidentiary regime of the transfer with the reformed statutory evidence framework. No other textual changes are recorded in the provided Endnotes.

When advising clients or conducting research, confirm whether further amendments or repeal provisions post-dating 1 January 2010 exist by consulting the current authorised version of the legislation and parliamentary amendment records. The Act itself contains internal mechanisms (CEO certificates, Treasurer determinations) that operate administratively rather than by future legislative amendment, but changes in related statutes such as the Corporations Act, land registration acts, or evidence statutes could affect operational details.

The Act as provided does not contain or cite any judicial decisions, appellate rulings or administrative determinations. The statutory text sets out procedural mechanisms for litigation and for substitution or continuation of proceedings, but it does not record any cases that have interpreted or applied its provisions. Sections directly relevant to litigation practice include the following:

• continuation and substitution of proceedings, and preservation of causes of action: s 9(1)-(3) permits pending and existing actions, arbitrations and regulatory inquiries to be prosecuted and continued by or against National as if the Act had not been enacted, and permits courts to enter judgments against both BNZ and National at a party’s request (s 9(2)-(3));
• pleadings and substitution for excluded matters: s 10 allows parties to seek leave to amend pleadings to substitute BNZ for National where proceedings relate to excluded assets or BNZ employees, and prevents costs orders against parties making such amendments (s 10(1)-(3));
• evidentiary treatment of BNZ records: s 11(1) permits books and documents admissible against BNZ to be used against National, and s 11(2) deems BNZ’s books of account to form part of National’s records for purposes of the Evidence Act 2008.

Because the Act confers substantial evidentiary weight on CEO certificates (s 23) and deems BNZ records to be National’s records under the Evidence Act (s 11(2)), litigation arising under or following the transfer would likely engage these provisions. Potential dispute points, suggested by the Act’s text and left to interpretation and adjudication in litigation, include the boundaries of excluded assets and excluded liabilities where CEO certificates are involved, the application of s 17(1) immunities for persons dealing with National or BNZ, and the extent to which courts will permit judgments against both BNZ and National under s 9(3).

The Act’s Endnotes do not identify any reported cases or specific litigation history. Practitioners seeking litigation precedents or interpretive authority should therefore consult court databases, tribunal decisions and reported opinions post-dating the Act’s commencement. The Act itself provides procedural tools to manage pending litigation affected by the transfer, but its text alone does not demonstrate how tribunals or courts have applied those tools in practice.

Absent any cases in the statute text, the prudent course is to search primary law databases and registry records for decisions invoking s 6 through s 23, and for any disputes concerning the Treasurer’s in-lieu determination under s 14. Similarly, searches should include references to s 21 where CEO certificates were lodged with the Australian Securities Commission in relation to charge registrations, and any disputes over the adequacy or rebuttal of CEO certificates under s 23.

In short, the Act contains litigation-relevant provisions but its provided text does not supply litigation history. Any assessment of how courts have construed the Act requires external case law research beyond the statutory text.

The Act contains several features that create legal, administrative and practical risks which advisers should highlight. These are not normative comments but pointed practical flags grounded in the Act’s text.

Timing and pre-commencement CEO certificates: The definitions of excluded asset and excluded liability depend on certificates signed by the Chief Executive Officer of National and received by the Treasurer before the commencement of Part 2 (s 3). The timing requirement is critical because assets or liabilities listed after commencement are not captured by that definition. Advisers must ensure documentary evidence of the pre-commencement lodgement with the Treasurer to establish exclusions.

Powerful evidentiary certificate and rebuttal burden: Certificates under the Act are conclusive evidence of the matters certified for all purposes in all courts and tribunals except so far as the contrary is established (s 23(1)). While not absolutely irrebuttable, the evidentiary weight imposed by s 23 shifts the burden to parties seeking to challenge a certificate. A document purporting to be a certificate is taken to be such unless the contrary is established (s 23(2)). Practitioners should plan for the evidentiary consequences and collect contemporaneous documentary and transactional evidence where validation of a certificate may be required.

Excluded assets and third-party dealings: Section 17(1) relieves persons dealing with National or BNZ and registrars from enquiring whether property is an excluded asset. That limits the due diligence duty of third parties but does not extinguish National’s liability to BNZ in respect of anything done in relation to an excluded asset (s 17(2)). Consequently, a third party who relies on the statutory trust placed in the certificate may still find that National faces internal claims from BNZ. The practical risk is that third parties may acquire interests that later give rise to internal disputes between National and BNZ, while third parties retain protection against being required to investigate exclusion status.

Employee entitlements and industrial law complexity: The Act excludes the employment of BNZ employees and employee-related funds from the vesting of the undertaking (s 6(2), s 7(2)(b),(c), s 9(1)(d),(e)), and yet s 13(1) directs that BNZ employees are to be engaged exclusively in service to National and under National’s direction. Subsection (2) qualifies this direction as subject to any law or determination relating to the employment of the person (s 13(2)). This creates potential complexity where statutory or enterprise agreement entitlements, transfer of business provisions in industrial law, or superannuation preservation rules apply. Advisers must reconcile the Act’s commercial direction with statutory employment protections and any transferable rights.

Treasurer’s discretionary determination for taxes: The amount payable in lieu of State taxes, duties and charges is to be determined by the Treasurer in accordance with such principles as the Treasurer thinks appropriate and in the Treasurer’s opinion equal to those liabilities (s 14(1)-(2)). The Act provides no procedural appeal or dispute mechanism within its text for the amount determined. The discretion is wide, and the absence of a statutory appeal process or formula creates fiscal uncertainty for National prior to the Treasurer’s certification.

Service and limitation implications: Section 16 deems service on National to be service on BNZ and vice versa. This deeming can have consequences for limitation periods and for the procedural posture of pending proceedings. Parties must account for this in litigation strategy and filing deadlines.

Joint judgments and residual liabilities: Although the Act permits continuation of proceedings by or against National, s 9(3) permits courts to enter judgments against both BNZ and National at a party’s request. This preserves claimant recourse to BNZ as well as National but also raises the possibility of double recovery or the need to coordinate enforcement and insolvency considerations in some fact patterns.

Customer information privacy and legal compliance: Section 8(1)(f) provides that information held by BNZ relating to customers is available to and may be used by National. The Act does not itself vary privacy or data protection statutes. Practitioners must therefore reconcile National’s ability to use BNZ-held information with obligations under privacy law and any other statutory constraints.

Registers and fee obligations: Registrars are required to make entries on request and on production of relevant instruments and payment of fees under other statutes such as the Transfer of Land Act 1958 (s 20(1)-(2)). Parties must ensure fee payments and document production comply with the required statutory formalities to obtain the register changes the Act contemplates.

Foreign or extraterritorial assets excluded: Section 5(3) states nothing in the Act applies to any part of BNZ’s undertaking, banking business, assets or liabilities carried on or situated wholly outside Australia. Asset location matters. Parties should map assets and liabilities spatially and confirm which regime governs registration and transfer rights.

Corporations Law and ASC formalities: Section 21 treats s 268(1) of the Corporations Law as complied with if a CEO certificate is lodged with the Australian Securities Commission. The Act presumes the ASC will accept such certificates. Practitioners should confirm whether the ASC’s successor arrangements or current corporate registry procedures have material differences and ensure proper lodgement.

Concluding note on gotchas: The Act creates administrative shortcuts and strong evidentiary presumptions that simplify transfer mechanics. Those same features create concentrated reliance on CEO certificates, Treasurer determinations, and registrational acts. Legal advisers should anticipate disputes about pre-commencement certificate content, the boundaries of excluded assets, employee entitlements, and the impact of s 23’s conclusive certification standard.

Compliance under this Act requires coordinated administrative steps and legal actions by National, BNZ, registrars and other stakeholders. The following outlines practical action points mapped to specific statutory duties and mechanisms.

For National (acquiring bank):

• Prepare and lodge pre-commencement CEO certificates where necessary. To define excluded assets and excluded liabilities, the CEO of National must sign and deliver certificates to the Treasurer before the commencement of Part 2 (s 3 definitions). Retain proof of receipt by the Treasurer to substantiate exclusions.
• Arrange for the Treasurer-determined payment in lieu of State taxes. Section 14 requires payment to the Treasurer of a sum equal, in the Treasurer’s opinion, to taxes, duties and charges that would otherwise be payable. National should engage early with the Treasurer to agree principles and calculations and obtain the Treasurer’s certificate under s 14(3) when payment is made.
• Prepare CEO certificates for registration purposes. For charges, s 21 requires lodgement of a CEO-signed certificate with the Australian Securities Commission to be taken to comply with s 268(1) of the Corporations Law. For other statutory registers, s 22 requires lodging a CEO certificate with the relevant authority to be taken as compliance with transfer requirements under that written law. Ensure correct execution and proper lodgement with the specified registry authorities.
• Ensure documentation for securities and negotiable instruments. Under s 8(1)(b)-(e), securities, negotiable instruments and orders are to be treated as transferred or effective for National. Verify that records reflect National as holder of securities and as payee or drawee for instruments and update internal ledgers and customer notifications.
• Preserve and make available BNZ records. Section 11(1)-(2) treats BNZ books and documents as admissible evidence for National and deems BNZ’s books of account to form part of National’s records for the Evidence Act 2008. Maintain and index BNZ records for evidentiary use, ensuring secure custody and chain of custody documentation.

For BNZ and BNZ employees:

• Clarify employment arrangements and legal rights. The Act excludes employment from the vesting (s 6(2), s 7(2)(b),(c)). Section 13 directs BNZ employees to be engaged exclusively in the provision of services to National, subject to applicable law or determinations (s 13(1)-(2)). Parties should check applicable employment statutes, awards, enterprise agreements and superannuation law to determine transfer rights and obligations and to document any determinations or agreements affecting employment status.
• Provide accurate employee records. Given s 11, BNZ’s relevant records must be preserved and made available for National and for any litigation or regulatory inquiries.

For registrars and register keepers:

• Be prepared to act on CEO certificates and instruments. Registrars must make recordings in the Register under the Transfer of Land Act 1958 on being requested and on delivery of relevant instruments and payment of fees (s 20(1)). For Crown grants, the Registrar-General must make entries on records of enrolment and memorials (s 20(2)). Other register keepers must accept a CEO certificate as fulfilling transfer requirements (s 22(c)) and must amend registers on request (s 22(d)). Ensure staff understand the required documentary form and fee payment procedures.
• Ensure manifest compliance with transfer instrument requirements. The Act requires production of relevant instruments for actions to be taken; register keepers should confirm instrument sufficiency and fee payment in line with enabling statutes.

For courts, tribunals and litigants:

• Apply the continuation and substitution mechanisms. Under s 9(2), pending proceedings involving BNZ may be continued by or against National without further act. Where proceedings relate to excluded assets or BNZ employees and National was made a party, s 10 allows parties to seek leave to amend pleadings substituting BNZ for National without costs orders against them. Courts should be ready to make or enter judgments against both BNZ and National at a party’s request under s 9(3).
• Use BNZ books as evidence for or against National. Under s 11(1)-(2), BNZ books are admissible for the same matters, and books of account are deemed to be National’s records under the Evidence Act 2008. Parties should ensure documents are properly authenticated and held in accordance with evidence rules.

For customers, depositors and security holders:

• Review account mandates and instructions. Customer instructions given to BNZ are deemed to have been given to National unless revoked (s 8(1)(a)). Customers who do not consent to National may need to revoke mandates or otherwise communicate new instructions.
• Confirm security interests and priorities. Security held by BNZ are transferred to National with the same rights and priorities (s 8(1)(b)-(c)). Security holders should confirm that register entries reflect National as the holder and that priority is preserved. Where a security extended to future advances, notes should be taken of any agreement between the party and National affecting future advances (s 8(1)(b)).

For advisers and compliance officers:

• Document Treasury interactions. The Treasurer’s discretionary role under s 14(2) requires clear documentation of principles and calculation methodology. National should document negotiations, opinions and principles used to arrive at the in-lieu payment to avoid later disputes.
• Plan for record-keeping and audit trails. CEO certificates are conclusive but rebuttable. Maintain contemporaneous records of certificate content, internal approvals, lodgement receipts and communications with registrars and the Treasurer to support or challenge certificates if required.
• Ensure regulatory compliance beyond the Act. Section 24 preserves obligations under written banking laws. National and BNZ remain subject to banking and corporate statutes and any prudential requirements. Confirm compliance with all applicable corporate, prudential and privacy laws when using customer information transferred under s 8(1)(f).
• Map assets territorially. Confirm which assets fall within Victoria and which are wholly outside Australia. Section 5(3) excludes parts of BNZ’s undertaking situated wholly outside Australia from the Act’s operation.

For the Treasurer and revenue officials:

• Establish and publish principles for the tax in-lieu calculation. While the Act leaves the principles to the Treasurer’s discretion (s 14(2)), developing a documented and consistent approach will reduce uncertainty and potential challenge.
• Provide timely certification. Under s 14(3), the Treasurer provides a certificate when satisfied the sum due has been paid. Timely action by the Treasurer enables registrational and transactional certainty downstream.

Adherence to these steps, with careful documentary practice around CEO certificates, Treasurer dealings and register entries, will operationalise the Act’s mechanisms and reduce administrative and litigation risk. Regular liaison among National, the Treasurer’s office, registrars and counsel is critical to ensure smooth transfer-related compliance.