Westpac and Bank of Melbourne (Challenge Bank) Act 1996 (Victoria)

This Act effects two sequential statutory transfers of banking business and related assets and liabilities that were immediately before the commencement time vested in Challenge Bank Limited. Mechanically, at the commencement time the entire undertaking of Challenge is divested from Challenge and vested in Westpac Banking Corporation by operation of Part 2 (s 6(1)). That vesting excludes specified matters, notably employment (s 6(2)) and the list of Westpac excluded assets in the definitions (s 3). All existing contracts, securities, bailments and instruments that immediately before the commencement time were binding on or enforceable by or against Challenge are, to the extent they were binding, treated as binding and enforceable in favour of or against Westpac after the commencement time (s 7(1)), subject to the express exclusions in s 7(2).

A further statutory transfer is provided in Part 3. At the Bank of Melbourne vesting time a defined “transferring undertaking” is divested from Westpac and vested in Bank of Melbourne (s 15). Contracts and instruments in force immediately before that vesting time that were binding on or enforceable by or against Challenge are, as to the transferring undertaking, treated as binding and enforceable in favour of or against Bank of Melbourne after that time (s 16(1)), again subject to exclusions (s 16(2)). Part 2 provides transitional rules that carry over customer relationships, security interests, bailments, negotiable instruments and customer information to Westpac at the commencement time (s 8). Part 3 provides analogous transitional rules for the transferring undertaking at the Bank of Melbourne vesting time (s 17).

The Act treats employee transfer differently depending on stage and geography. Part 2 expressly does not affect employment of Challenge employees (s 6(2)), while Part 3 contains a specific statutory transfer of Victorian Challenge employees to Bank of Melbourne: employees employed in Victoria immediately before the commencement time are to be regarded as appointed by Bank of Melbourne from that time, with continuity of service and equivalent accrued entitlements (s 18(1)-(2)). An employee may elect in writing not to transfer (s 18(4)).

i Version No. 003 Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 Version incorporating amendments as at 1 January 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 2 1 Purpose 2 2 Commencement 2 3 Definitions 3 4 Act to bind Crown 7 5 Territorial application of Act 7 PART 2—VESTING OF UNDERTAKING OF CHALLENGE IN WESTPAC 8 Division 1—Vesting 8 6 Vesting of undertaking 8 7 Effect of contracts and instruments 8 8 Transitional provisions 9 9 Legal proceedings 11 10 Amendment of Court documents where Westpac erroneously made a party 13 11 Evidence 13 12 Construction of references 14 Division 2—Repealed 14 13, 14 Repealed 14 PART 3—VESTING OF TRANSFERRING UNDERTAKING IN BANK OF MELBOURNE 15 15 Vesting of undertaking 15 16 Effect of contracts and instruments 15 17 Transitional provisions 16 18 Transfer of Challenge Victorian staff to Bank of Melbourne 19 19 Business name 19

Section Page ii 20 Legal proceedings 20 21 Amendment of Court documents where Bank of Melbourne erroneously made a party 21 22 Evidence 22 23 Construction of references 22 24 Repeal of provisions consequential on operation of this Part 23 PART 4—Repealed 23 25–34 Repealed 23 PART 5—GENERAL 24 35 Payment of amount in lieu of State taxes and charges 24 36 Consumer Credit (Victoria) Act 1995 25 37 Effect of things done under this Act 26 38 Service of documents 27 39 Excluded assets 27 40 Certificates may be issued 29 41 Interests in land in the Register Book 29 42 Action by Registrar of Titles or Registrar-General 29 43 Certificates in relation to charges 30 44 Other property 30 45 Certificates conclusive 31 46 Application of banking laws 32

SCHEDULE—Repealed 33 ═══════════════ ENDNOTES 34

General Information 34
Table of Amendments 35
Explanatory Details 36

1 Version No. 003 Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 Version incorporating amendments as at 1 January 2010 Preamble 1 (1) Challenge Bank Limited A.C.N. 009 230 433 ("Challenge") is a company incorporated in Western Australia and is a company within the meaning of the Corporations Law and is a company limited by shares. (2) Westpac Banking Corporation A.R.B.N. 007 457 141 ("Westpac") is a body corporate constituted by an Act of the Parliament of New South Wales. (3) Westpac carries on the business of banking throughout Australia and elsewhere in the world, and Challenge carries on the business of banking principally in Western Australia and Victoria but also in other States and Territories of Australia. (4) On 21 December 1995 Westpac became the beneficial owner of the whole of the issued share capital of Challenge and since that date Challenge has been a wholly owned subsidiary of Westpac. (5) Under the conditions imposed on the authority of Challenge to carry on banking business in Australia Challenge is required to surrender that authority. (6) Accordingly it is necessary and expedient to transfer the banking business of Challenge to Westpac. (7) On 22 November 1995 consent was given pursuant to section 63 of the Banking Act 1959 of the Commonwealth to the amalgamation of the banking business of Challenge with that of Westpac.

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 2 (8) Westpac and Bank of Melbourne Limited A.C.N. 007 270 448 ("Bank of Melbourne") have agreed that part of the banking business of Challenge will be vested in Bank of Melbourne. (9) On 23 May 1996 consent was given pursuant to section 63 of the Banking Act 1959 of the Commonwealth to the acquisition by the Bank of Melbourne of part of the banking business of Challenge. (10) It is expedient to enact legislation to provide for the vesting of the banking business of Challenge in Westpac and the vesting of part of that business in Bank of Melbourne. The Parliament of Victoria therefore enacts as follows: PART 1—PRELIMINARY 1 Purpose The purpose of this Act is— (a) to provide for the transfer to Westpac Banking Corporation of the banking business of Challenge Bank Limited; (b) to provide for the transfer to Bank of Melbourne Limited of part of that business and for other purposes. 2 Commencement (1) Part 1 and section 35 come into operation on the day on which this Act receives the Royal Assent. (2) Division 1 of Part 2 and Part 5 (except section 36) come into operation on a day to be proclaimed. (3) Division 2 of Part 2 comes into operation on a day to be proclaimed. (4) Part 3 comes into operation on a day to be proclaimed. s. 1

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 3

(6) Section 36 comes into operation on a day to be proclaimed. 3 Definitions 2 In this Act— Bank of Melbourne means Bank of Melbourne Limited A.C.N. 007 270 448; Bank of Melbourne agreement means the sale and purchase agreement entered into before the commencement time between Westpac and Bank of Melbourne relating to the acquisition by Bank of Melbourne from Westpac of part of the business and property of Challenge (however described); Bank of Melbourne excluded asset means an asset that, under the Bank of Melbourne agreement, is an excluded asset; Bank of Melbourne vesting time— (a) in Part 2, means— (i) the moment after the commencement time, if Part 3 is in operation at that time; or (ii) if Part 3 is not in operation at that time, the date of commencement of section 25; (b) in Part 3, means the moment after the commencement time; and (c) in Part 4, means the date of commencement of section 25; S. 2(5) repealed by No. 26/1996 s. 24. s. 3

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 4 Challenge means Challenge Bank Limited A.C.N. 009 230 433; Challenge employee (a) in Part 3, means a person employed by Challenge immediately before the commencement time; and (b) in Part 4, means a person employed by Challenge in Victoria immediately before the Bank of Melbourne vesting time within the meaning of that Part; Chief Executive Officer, in relation to a bank, means the officer in charge of the day to day management of the affairs of that bank or a person appointed by that officer in writing; commencement time means 12 noon Eastern Standard Time on the day on which Division 1 of Part 2 comes into operation; liabilities includes duties, obligations and incidents of every description, whether actual, contingent or prospective, but does not include any duty, obligation or incident relating to an excluded asset; property means property and assets of every description, and includes securities, rights and powers of every description; register includes a book of registry and an index relating to registration; security includes a mortgage (whether legal or equitable), charge, debenture, bill of exchange, promissory note, guarantee, lien, pledge or other means of securing the payment of a debt, whether present or future, or the discharge of an obligation or liability, whether actual or contingent; s. 3

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 5 transferring undertaking— (a) in Part 2— (i) has the same meaning as in Part 3, if Part 3 is in operation at the commencement time; or (ii) if Part 3 is not in operation at that time, has the same meaning as in Part 4; (b) in Part 3, means that part of the undertaking of Challenge that vested in Westpac under Part 2 and that, under the Bank of Melbourne agreement, is the transferring undertaking for the purposes of Part 3; (c) in Part 4, means that part of the business and property of Westpac that, under the Bank of Melbourne agreement, is the transferring undertaking for the purposes of Part 4; undertaking of Challenge means the business and all of the property of Challenge (except any Westpac excluded assets and any right or power of Challenge relating to any Westpac excluded assets) vested in or belonging to or held by Challenge immediately before the commencement time and all of the liabilities to which Challenge is subject immediately before that time; Westpac means Westpac Banking Corporation A.R.B.N. 007 457 141; Westpac excluded asset means— (a) any document required to be kept by Challenge under the Corporations Law or any other law; s. 3

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 6 (b) shares held by Challenge in— (i) CBL Financial Services Ltd A.C.N. 009 340 390; (ii) CBL Securities Ltd A.C.N. 009 124 341; (iii) Challase Pty Ltd A.C.N. 059 339 641; (iv) Challenge Finance Limited A.C.N. 000 032 735; (v) Challenge Funds Management Ltd A.C.N. 009 065 990; (vi) Challenge Information Technology Pty Ltd A.C.N. 007 258 488; (vii) Challenge Insurance Services (Agency) Pty Ltd A.C.N. 009 086 444; (viii) Cold Storage Construction Pty Ltd A.C.N. 001 122 005; (ix) Herston Pty Ltd A.C.N. 009 041 650; (x) National Permanent Management Services Pty Ltd A.C.N. 009 076 653; (xi) Olsona Ltd A.C.N. 003 409 756; (xii) Westman Enterprises Pty Ltd A.C.N. 008 915 099; (c) units held by Challenge in National Permanent Property Trust, a trust created by a deed dated 21 August 1982 between Herston Pty Ltd and National Permanent Funds Management Pty Ltd; s. 3

Part 1—Preliminary Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 7 (d) the Challenge logo registered under the Trade Marks Act 1995 of the Commonwealth as a trade mark in classes 16, 36 and 39 under numbers A486912, A486911 and A486910 respectively; (e) the trade mark "Challenge" registered under the Trade Marks Act 1995 of the Commonwealth as a trademark in class 36 under number A533638; and (f) such other assets as are listed in a certificate signed by the Chief Executive Officer of Westpac and received by the Treasurer before the commencement day. 4 Act to bind Crown This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 5 Territorial application of Act (1) This Act applies both within and outside Victoria. (2) This Act applies outside Victoria to the full extent of the extra-territorial legislative power of Victoria.

s. 4

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 8 PART 2—VESTING OF UNDERTAKING OF CHALLENGE IN WESTPAC Division 1—Vesting 6 Vesting of undertaking (1) At the commencement time, the undertaking of Challenge is by virtue of this Part divested from Challenge and vested in Westpac. (2) Subsection (1) has no effect in relation to the employment of Challenge employees. 7 Effect of contracts and instruments (1) All contracts, agreements, conveyances, deeds, leases, licences and other instruments or undertakings entered into by or made with, or addressed to, Challenge (whether alone or with any other person) in force immediately before the commencement time are on and after that time to the extent that they were immediately before that time binding upon and enforceable by, or against, Challenge, binding and of full force and effect in every respect in favour of, or against, Westpac, as fully and effectually as if, instead of Challenge, Westpac had been a party to them or bound by them or entitled to the whole or any portion of the benefit of them. (2) Subsection (1) does not apply to any contract, agreement, conveyance, deed, lease, licence, instrument or undertaking relating to— (a) a Westpac excluded asset; or (b) the employment of a Challenge employee; or (c) a provident, benefit, superannuation or retirement fund relating to Challenge employees. s. 6

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 9 (3) A director, secretary or auditor of Challenge is not by reason only of this Part a director, secretary or auditor (as the case may be) of Westpac. (4) Subsection (1) ceases to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time. 8 Transitional provisions (1) Subject to subsection (3) and without limiting sections 6 and 7, the following provisions have effect in relation to the banking business of Challenge— (a) the relationship between Challenge and a customer or depositor of that bank is, after the commencement time, between Westpac and that customer or depositor, and gives rise to the same rights and the same duties (including rights of set-off) as would have existed at that time if that relationship had been between Westpac and the customer or depositor, and so that any instruction, order, direction, mandate or authority given by that customer or depositor to Challenge and subsisting on or given after the commencement time is, unless and until revoked or cancelled, deemed to have been given to Westpac; (b) any security held by Challenge as security for the payment of the debts or liabilities (whether present or future, certain or contingent) of any person is by virtue of this Part transferred to Westpac at the commencement time, and is to be held by and be available to Westpac as security for the payment of those debts and liabilities to Westpac (but not, by reason only of this Part, as security for any debt or liability of that person to Westpac existing immediately s. 8

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 10 before that time) and, where the security extends to future advances to, or to future liabilities of, that person, the security shall, after that time, subject to any agreement between Westpac and that person, be held by and be available to Westpac as security for future advances to that person by, and future liabilities of that person to, Westpac, to the same extent to which future advances by, or liabilities to, Challenge were secured immediately before that time; (c) Westpac is, in relation to any security transferred under this Part and the money secured by the security, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been entitled and subject to, if the security had continued to be held by Challenge; (d) the custody of any document, goods or thing held by Challenge as bailee for any other person at any office or branch or agency of Challenge is by virtue of this Part transferred to Westpac at the commencement time, and the rights, duties and liabilities of Challenge under any contract of bailment relating to the document, goods or thing are transferred at that time to Westpac; (e) any negotiable instrument or order for the payment of money, whether drawn, given, accepted or endorsed before, at or after the commencement time, which is expressed to be drawn by, drawn on, or given to, or accepted or endorsed by Challenge, or payable at any place of business of Challenge, has the same effect after the commencement time as if it had been drawn by, drawn on, or given to, or accepted or s. 8

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 11 endorsed by, Westpac, or payable at the same place of business of Westpac; (f) any information held immediately before the commencement time by Challenge relating to a customer or depositor of that bank is available to and may be used by Westpac after the commencement time. (2) Despite subsection (1) and sections 6 and 7— (a) Westpac is, in relation to any security held by it over any money on deposit with Challenge immediately before the commencement time, entitled to the same rights and priorities and subject to the same liabilities as it would have been had the money on deposit continued to be held by Challenge; and (b) Westpac is, in relation to any security held by Challenge immediately before the commencement time over money on deposit with Westpac, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been had the security continued to be held by Challenge. (3) Subsections (1) and (2) cease to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time. 9 Legal proceedings (1) This section applies to— (a) any action, arbitration or proceeding or cause of action, arbitration or proceeding which is at the commencement time pending or existing by, against, or in favour of, Challenge; and s. 9

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 12 (b) any cause of action, arbitration or proceeding by, against, or in favour of, Challenge, which arises after the commencement time in respect of a contract made by Challenge before the commencement time or which arises in respect of anything done or omitted to be done by Challenge before the commencement time— but does not apply to any action, arbitration or proceeding or to any cause of action relating to— (c) a Westpac excluded asset; (d) the employment of a Challenge employee; or (e) a provident, benefit, superannuation or retirement fund relating to Challenge employees. (2) Any action, arbitration or proceeding and any cause of action, arbitration or proceeding to which this section applies, is not abated or discontinued or in any way prejudicially affected by reason of this Part, and may, without any further act, deed or instrument other than any appropriate amendment of the records of the relevant court or tribunal, be prosecuted and continued and enforced by or against Westpac, in its own name as and when it might have been prosecuted, continued and enforced by or against Challenge if this Act had not been enacted. (3) Despite subsection (2), the court, tribunal or other person making or entering any judgment, order or award for the payment of any sum of money, whether ascertained or to be ascertained, against Westpac in any legal or arbitral proceeding to which this section applies may, at the request of any party in whose favour the judgment, order or award is being made or entered, make or enter the judgment, order or award against both Challenge s. 9

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 13 and Westpac, and the judgment, order or award may, when so made or entered, be enforced against both Challenge and Westpac. (4) Subsections (2) and (3) cease to have effect in relation to the transferring undertaking at the Bank of Melbourne vesting time. 10 Amendment of Court documents where Westpac erroneously made a party (1) Any party to any action, arbitration or proceeding relating to a Westpac excluded asset or a Challenge employee is entitled at any stage to seek leave to amend any writ, pleading or other document filed by the party in the action, arbitration or proceeding by substituting for the name of Westpac the name of Challenge as party. (2) No order is to be made against any party so amending to pay to Westpac or to Challenge any costs occasioned by that amendment. (3) The action, arbitration or proceeding is to be continued as if Challenge had originally been made a party to it. 11 Evidence (1) Any book or document which if this Part had not been enacted would have been evidence in respect of any matter for or against Challenge is, subject to this Part, after the commencement time, to be admissible in evidence in respect of the same matter for or against Westpac. (2) Without limiting subsection (1), the books of account of Challenge are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by Westpac.

s. 10 S. 11(2) substituted by No. 69/2009 s. 54(Sch. Pt 1 item 64.1). S. 11(3) repealed by No. 69/2009 s. 54(Sch. Pt 1 item 64.3).

Part 2—Vesting of Undertaking of Challenge in Westpac Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 14 12 Construction of references Subject to this Act, if any written law (other than this Act) or any document, whenever made or executed or any register established or kept under any Act contains any reference express or implied to Challenge, the reference is, after the commencement time to be read and construed as a reference to Westpac, unless the context otherwise requires.

s. 12 Pt 2 Div. 2 (Heading and ss 13, 14) repealed by No. 26/1996 s. 24.

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 15 PART 3—VESTING OF TRANSFERRING UNDERTAKING IN BANK OF MELBOURNE 15 Vesting of undertaking At the Bank of Melbourne vesting time the transferring undertaking is by virtue of this Part divested from Westpac and vested in Bank of Melbourne. 16 Effect of contracts and instruments (1) All contracts, agreements, conveyances, deeds, leases, licences and other instruments or undertakings entered into by or made with, or addressed to, Challenge (whether alone or with any other person) in force immediately before the Bank of Melbourne vesting time are on and after that time to the extent that they were immediately before the commencement time binding upon and enforceable by, or against, Challenge, binding and of full force and effect in every respect in favour of, or against, Bank of Melbourne, as fully and effectually as if, instead of Challenge, Bank of Melbourne had been a party to them or bound by them or entitled to the whole or any portion of the benefit of them. (2) Subsection (1) does not apply to any contract, agreement, conveyance, deed, lease, licence, instrument or undertaking relating to— (a) a Westpac excluded asset; or (b) a Bank of Melbourne excluded asset; or (c) the employment of a Challenge employee; or (d) a provident, benefit, superannuation or retirement fund relating to Challenge employees. s. 15

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 16 (3) A director, secretary or auditor of Challenge is not by reason only of this Part a director, secretary or auditor (as the case may be) of Bank of Melbourne. 17 Transitional provisions (1) Without limiting sections 15 and 16, the following provisions have effect in relation to the transferring undertaking— (a) the relationship between Challenge and a customer or depositor of that bank is, on and after the Bank of Melbourne vesting time, between Bank of Melbourne and that customer or depositor, and gives rise to the same rights and the same duties (including rights of set-off) as would have existed at the commencement time if that relationship had been between Bank of Melbourne and the customer or depositor, and so that any instruction, order, direction, mandate or authority given by that customer or depositor to Challenge and subsisting on or given after the Bank of Melbourne vesting time is, unless and until revoked or cancelled, deemed to have been given to Bank of Melbourne; (b) any security held by Challenge as security for the payment of the debts or liabilities (whether present or future, certain or contingent) of any person and transferred to Westpac by Part 2 is by virtue of this Part transferred to Bank of Melbourne at the Bank of Melbourne vesting time, and is to be held by and be available to Bank of Melbourne as security for the payment of those debts and liabilities to Bank of Melbourne (but not, by reason only of this Part, as security for any debt or liability of s. 17

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 17 that person to Bank of Melbourne existing immediately before that time) and, where the security extends to future advances to, or to future liabilities of, that person, the security shall, after that time, subject to any agreement between Bank of Melbourne and that person, be held by and be available to Bank of Melbourne as security for future advances to that person by, and future liabilities of that person to, Bank of Melbourne, to the same extent to which future advances by, or liabilities to, Challenge were secured immediately before the commencement time; (c) Bank of Melbourne is, in relation to any security transferred under this Part and the money secured by the security, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been entitled and subject to, if the security had continued to be held by Challenge; (d) the custody of any document, goods or thing held by Challenge as bailee for any other person at any office or branch or agency of Challenge transferred to Westpac by Part 2 is by virtue of this Part transferred to Bank of Melbourne at the Bank of Melbourne vesting time, and the rights, duties and liabilities of Challenge under any contract of bailment relating to the document, goods or thing transferred at that time to Westpac are transferred to Bank of Melbourne; (e) any negotiable instrument or order for the payment of money, whether drawn, given, accepted or endorsed before, at or after the commencement time, which is expressed to be drawn by, drawn on, or given to, or accepted or endorsed by Challenge, or s. 17

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 18 payable at any place of business of Challenge, has the same effect on and after the Bank of Melbourne vesting time as if it had been drawn by, drawn on, or given to, or accepted or endorsed by, Bank of Melbourne, or payable at the same place of business of Bank of Melbourne; (f) any information held immediately before the commencement time by Challenge relating to a customer or depositor of that bank is available to and may be used by Bank of Melbourne on and after the Bank of Melbourne vesting time. (2) Despite subsection (1) and sections 15 and 16— (a) Bank of Melbourne is, in relation to any security held by it over any part of the transferring undertaking that consists of money on deposit with Challenge immediately before the commencement time, entitled to the same rights and priorities and subject to the same liabilities as it would have been had the money on deposit continued to be held by Challenge; and (b) Bank of Melbourne is, in relation to any security held by Challenge immediately before the commencement time over any part of the transferring undertaking that consists of money on deposit with Bank of Melbourne, entitled to the same rights and priorities and subject to the same liabilities as Challenge would have been had the security continued to be held by Challenge. s. 17

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 19 18 Transfer of Challenge Victorian staff to Bank of Melbourne (1) A person who was an employee of Challenge in Victoria immediately before the commencement time is to be regarded as— (a) having been appointed by Bank of Melbourne with effect from that time; and (b) having an accrued entitlement to long service leave, sick leave, recreation leave or other like benefits, in connection with that appointment by the Bank of Melbourne, that is equivalent to the accrued entitlement to those benefits that the person had, immediately before that time, in respect of the person's employment by Challenge. (2) The service of a transferred employee as an employee of Bank of Melbourne is to be regarded for all purposes as having been continuous with the service of the employee, immediately before the commencement time, as an employee of Challenge. (3) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of Challenge because of this Part. (4) Subsection (1) does not apply to an employee of Challenge who, in writing given to Challenge or Bank of Melbourne before the Bank of Melbourne vesting time, elects not to become an employee of Bank of Melbourne. 19 Business name (1) In addition to any other names under which it is entitled to carry on business in Victoria, during the transition period, Bank of Melbourne may carry on business in Victoria under the business name "Challenge Bank Limited" as if that name s. 18

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 20 was registered under the Business Names Act 1962 as a business name of Bank of Melbourne. (2) Subsection (1) does not have effect as an exemption from section 46. (3) In subsection (1), transition period means the period of 6 months beginning at the Bank of Melbourne vesting time. 20 Legal proceedings (1) This section applies to— (a) any action, arbitration or proceeding or cause of action, arbitration or proceeding which is at the Bank of Melbourne vesting time pending or existing by, against, or in favour of, Challenge in relation to any part of the transferring undertaking; and (b) any cause of action, arbitration or proceeding by, against, or in favour of, Challenge in relation to any part of the transferring undertaking, which arises after the Bank of Melbourne vesting time in respect of a contract made by Challenge before the commencement time or which arises in respect of anything done or omitted to be done by Challenge before the commencement time— but does not apply to any action, arbitration or proceeding or to any cause of action relating to— (c) a Westpac excluded asset; or (d) a Bank of Melbourne excluded asset; or (e) a provident, benefit, superannuation or retirement fund relating to Challenge employees. s. 20

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 21 (2) Any action, arbitration or proceeding and any cause of action, arbitration or proceeding to which this section applies, is not abated or discontinued or in any way prejudicially affected by reason of this Part, and may, without any further act, deed or instrument other than any appropriate amendment of the records of the relevant court or tribunal, be prosecuted and continued and enforced by or against Bank of Melbourne, in its own name as and when it might have been prosecuted, continued and enforced by or against Challenge if this Act had not been enacted. (3) Despite subsection (2), the court, tribunal or other person making or entering any judgment, order or award for the payment of any sum of money, whether ascertained or to be ascertained, against Bank of Melbourne in any legal or arbitral proceeding to which this section applies may, at the request of any party in whose favour the judgment, order or award is being made or entered, make or enter the judgment, order or award against both Challenge and Bank of Melbourne, and the judgment, order or award may, when so made or entered, be enforced against both Challenge and Bank of Melbourne. 21 Amendment of Court documents where Bank of Melbourne erroneously made a party (1) Any party to any action, arbitration or proceeding relating to a Bank of Melbourne excluded asset is entitled at any stage to seek leave to amend any writ, pleading or other document filed by the party in the action, arbitration or proceeding by substituting for the name of Bank of Melbourne the name of Challenge as party. s. 21

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 22 (2) No order is to be made against any party so amending to pay to Bank of Melbourne or to Challenge any costs occasioned by that amendment. (3) The action, arbitration or proceeding is to be continued as if Challenge had originally been made a party to it. 22 Evidence (1) Any book or document which if this Part had not been enacted would have been evidence in respect of any matter for or against Challenge in relation to the transferring undertaking is, subject to this Act, after the commencement time, to be admissible in evidence in respect of the same matter for or against Bank of Melbourne. (2) Without limiting subsection (1), the books of account of Challenge in relation to the transferring undertaking are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by the Bank of Melbourne.

23 Construction of references Subject to this Act, if any written law (other than this Act) or any document, whenever made or executed or any register established or kept under any Act contains any reference express or implied to Challenge in relation to the transferring undertaking, the reference is, after the Bank of Melbourne vesting time to be read and construed as a reference to Bank of Melbourne, unless the context otherwise requires. s. 22 S. 22(2) substituted by No. 69/2009 s. 54(Sch. Pt 1 item 64.2). S. 22(3) repealed by No. 69/2009 s. 54(Sch. Pt 1 item 64.3).

Part 3—Vesting of Transferring Undertaking in Bank of Melbourne Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 23 24 Repeal of provisions consequential on operation of this Part Section 2(5), Division 2 of Part 2 and Part 4 are repealed.

s. 24 Pt 4 (Heading and ss 25–34) repealed by No. 26/1996 s. 24.

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 24 PART 5—GENERAL 35 Payment of amount in lieu of State taxes and charges (1) Westpac must pay to the Treasurer in lieu of all taxes, duties and charges for which it would otherwise be liable under the law of the State as a result of, or in connection with, the transfer of the undertaking of Challenge so far as it is located in Victoria, to Westpac, a sum which is, in the opinion of the Treasurer, equal to the amount of those taxes, duties and charges. (2) Bank of Melbourne must pay to the Treasurer in lieu of all taxes, duties and charges for which it would otherwise be liable under the law of the State as a result of, or in connection with, the transfer of the transferring undertaking to Bank of Melbourne a sum which is, in the opinion of the Treasurer, equal to the amount of those taxes, duties and charges. (3) The amount payable under subsection (1) or (2) is to be determined by the Treasurer in accordance with such principles as the Treasurer thinks appropriate. (4) The Treasurer is to give a certificate to Westpac when satisfied that the sum due under subsection (1) has been paid stating that the sum due under that subsection has been paid. (5) The Treasurer is to give a certificate to Bank of Melbourne when satisfied that the sum due under subsection (2) has been paid stating that the sum due under that subsection has been paid. s. 35

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 25 36 Consumer Credit (Victoria) Act 1995 (1) The Consumer Credit (Victoria) Act 1995 does not have effect during any transition period applying in respect of— (a) the undertaking of Challenge; (b) the transferring undertaking within the meaning of Part 3; (c) the transferring undertaking within the meaning of Part 4; (d) the business of Challenge— and the Credit Act 1984 (as in force before the commencement of Part 2 of the Consumer Credit (Victoria) Act 1995) applies in respect of that undertaking or business during that transition period. (2) If a transition period applies in respect of an undertaking or business referred to in subsection (1), sections 19A(1) and 19B of the Credit Act 1984 apply in respect of the undertaking or business as if a reference in those sections to "the commencement day" were a reference to the day after the day on which the transition period ends. (3) The Minister administering the Credit Act 1984, by notice published in the Government Gazette, may extend, or further extend, a transition period referred to in subsection (1) but not so that it exceeds a total period of 6 months. (4) In this section, transition period means— (a) in relation to the undertaking of Challenge, the period beginning at the commencement time; (b) in relation to the transferring undertaking within the meaning of Part 3, the period beginning at the commencement time; s. 36

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 26 (c) in relation to the transferring undertaking within the meaning of Part 4, the period beginning on the day on which Part 4 comes into operation; (d) in relation to the business of Challenge, the period beginning on the day on which this section comes into operation or the date of commencement of Part 2 of the Consumer Credit (Victoria) Act 1995, whichever is the later— and ending on such date, being not later than 6 months, after the beginning of the period, as is declared in relation to the particular period, by the Minister administering the Credit Act 1984 by notice published in the Government Gazette, to be the end of that period. 37 Effect of things done under this Act (1) Nothing effected by this Act or done or suffered by Challenge, Westpac or Bank of Melbourne under this Act or done to give effect to this Act— (a) is to be regarded as placing any of them in breach of contract or confidence or as otherwise making either of them guilty of a civil wrong; or (b) is to be regarded as placing any of them in breach of or as constituting a default under any written law or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or (c) is to be regarded as fulfilling any condition which allows a person to terminate any agreement or liability; or s. 37

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 27 (d) releases any surety or other obligee wholly or in part from any liability. (2) Without limiting subsection (1) where, but for this subsection, the advice or consent of any person would be necessary to carry out any action authorised by this Act, that advice or consent is taken to have been given. 38 Service of documents (1) Service of a document after the commencement time— (a) on Westpac is deemed to be service on Challenge in addition to service on Westpac; and (b) on Challenge is deemed to be service on Westpac in addition to service on Challenge. (2) Subsection (1) ceases to apply upon Challenge ceasing to be a related body corporate of Westpac within the meaning of section 9 of the Corporations Law. 3 39 Excluded assets (1) No person dealing with Westpac or Challenge (in any capacity whatsoever) nor the Registrar of Titles, nor any other person registering or certifying title to land or having the power or duty to examine or receive evidence as to title to land, in respect of any dealing or transaction entered into or purporting to be entered into by Westpac or Challenge, is to be concerned to see, or enquire into, whether any property the subject of the dealing or transaction (whether or not that property is land) is a Westpac excluded asset, nor is such person to be affected by any notice, express, implied or constructive, that any such property is a Westpac excluded asset. s. 38

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 28 (2) If any dealing or transaction is entered into by Westpac with any person, in relation to or in connection with a Westpac excluded asset, it is to be deemed in favour of that person that Westpac has full power and authority to enter into that dealing or transaction as if that asset had vested in Westpac under Part 2. (3) Nothing in subsection (1) affects the liability of Westpac to Challenge in respect of anything done, or purporting to be done, by Westpac in relation to or in connection with a Westpac excluded asset. (4) No person dealing with Bank of Melbourne (in any capacity whatsoever) nor the Registrar of Titles, nor any other person registering or certifying title to land or having the power or duty to examine or receive evidence as to title to land, in respect of any dealing or transaction entered into or purporting to be entered into by Bank of Melbourne is to be concerned to see, or enquire into, whether any property the subject of the dealing or transaction (whether or not that property is land) is a Bank of Melbourne excluded asset, nor is such person to be affected by any notice, express, implied or constructive, that any such property is a Bank of Melbourne excluded asset. (5) If any dealing or transaction is entered into by Bank of Melbourne with any person, in relation to or in connection with a Bank of Melbourne excluded asset, it is to be deemed in favour of that person that Bank of Melbourne has full power and authority to enter into that dealing or transaction as if that asset had vested in Bank of Melbourne under this Act. (6) Nothing in this section affects the liability of Bank of Melbourne to Westpac in respect of anything done, or purporting to be done, by Bank of s. 39

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 29 Melbourne in relation to or in connection with a Bank of Melbourne excluded asset. 40 Certificates may be issued (1) The Chief Executive Officer of Westpac may, by signed certificate, certify any matter in relation to the operation of Part 2. (2) The Chief Executive Officer of Bank of Melbourne may, by signed certificate, certify any matter in relation to the operation of Part 3 or 4. 41 Interests in land in the Register Book (1) Where any land of which Challenge is, or is deemed or taken to be, the registered proprietor is by virtue of Part 2 vested in Westpac, notwithstanding anything to the contrary in any written law or other law, Westpac is to be deemed to be the registered proprietor of the land for the purposes of the Transfer of Land Act 1958 and the land may be dealt with accordingly. (2) Where any land of which Challenge or Westpac is, or is deemed or taken to be, the registered proprietor is by virtue of Part 3 or 4 vested in Bank of Melbourne, notwithstanding anything to the contrary in any written law or other law, Bank of Melbourne is to be deemed to be the registered proprietor of the land for the purposes of the Transfer of Land Act 1958 and the land may be dealt with accordingly. 42 Action by Registrar of Titles or Registrar-General (1) On being requested to do so and on delivery of any relevant instrument or document and on payment of any relevant fees under the Transfer of Land Act 1958, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of this Act. s. 40

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 30 (2) On being requested to do so and on production of any relevant instrument or document, the Registrar-General must make all entries on records of enrolment of any Crown grant and on any memorial relating to any land concerned that are necessary because of the operation of this Act. 43 Certificates in relation to charges Section 268(1) of the Corporations Law is to be taken to have been complied with in respect of all charges of which Westpac or Bank of Melbourne becomes the holder by virtue of this Act if there is lodged with the Australian Securities Commission a certificate signed by the Chief Executive Officer of Westpac or Bank of Melbourne, as the case requires, stating that by virtue of this Act the undertaking of Challenge has become vested in Westpac or the transferring undertaking has become vested in Bank of Melbourne, as the case requires. 44 Other property (1) If— (a) any property (other than property to which section 41, 42 or 43 applies) becomes, under Part 2, the property of Westpac; and (b) any person or authority has, under any written law, responsibility for keeping a register in respect of property of that kind— then— (c) any requirement of that written law relating to the transfer of such property from one person to another is to be taken to have been complied with if there is lodged with that person or authority a certificate signed by the Chief Executive Officer of Westpac stating that by virtue of Part 2 the undertaking of s. 43

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 31 Challenge has become vested in Westpac; and (d) that person or authority, on being requested to do so and on delivery of any relevant instrument, is to make any amendments to that register which are necessary to make it accurately reflect the effect of Part 2. (2) If— (a) any property (other than property to which section 41, 42 or 43 applies) becomes, under this Act, the property of Bank of Melbourne; and (b) any person or authority has, under any written law, responsibility for keeping a register in respect of property of that kind— then— (c) any requirement of that written law relating to the transfer of such property from one person to another is to be taken to have been complied with if there is lodged with that person or authority a certificate signed by the Chief Executive Officer of Bank of Melbourne stating that by virtue of Part 3 or 4 the transferring undertaking has become vested in Bank of Melbourne; and (d) that person or authority, on being requested to do so and on delivery of any relevant instrument, is to make any amendments to that register which are necessary to make it accurately reflect the effect of Part 3 or 4. 45 Certificates conclusive (1) For all purposes and in all courts, tribunals and proceedings, a certificate under this Act is conclusive evidence of the matters certified, except so far as the contrary is established. s. 45

Part 5—General Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 32 (2) A document purporting to be a certificate under this Act is, unless the contrary is established, taken to be such a certificate and to have been properly given. 46 Application of banking laws Except to the extent that an exemption is directly contemplated by, or is a necessary consequence of, this Act, nothing in this Act exempts Westpac or Bank of Melbourne from the provisions of any written law relating to companies carrying on the business of banking.

s. 46

Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 33

═══════════════ Sch. 1 repealed by No. 26/1996 s. 24. Sch. 1

Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 34 ENDNOTES

General Information Minister's second reading speech— Legislative Assembly: 18 June 1996 Legislative Council: 19 June 1996 The long title for the Bill for this Act was "A Bill to provide for the transfer to Westpac Banking Corporation of the banking business of Challenge Bank Limited and the transfer to Bank of Melbourne Limited of part of that business and for other purposes." The Westpac and Bank of Melbourne (Challenge Bank) Act 1996 was assented to on 2 July 1996 and came into operation as follows: Part 1 (sections 1–5), section 35 on 2 July 1996: section 2(1); section 36 on 1 November 1996: Government Gazette 31 October 1996 page 2811; Part 2 Division 1 (sections 6–12), Part 3 (sections 15–24), sections 37–46 on 8 December 1996: Government Gazette 5 December 1996 page 3105; Part 2 Division 2 (sections 13, 14), Part 4 (sections 25–34) and Schedule 1 repealed unproclaimed by section 24 of this Act. Endnotes

Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 35 2. Table of Amendments This Version incorporates amendments made to the Westpac and Bank of Melbourne (Challenge Bank) Act 1996 by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Westpac and Bank of Melbourne (Challenge Bank) Act 1996, No. 26/1996 Assent Date: 2.7.96 Commencement Date: S. 24 on 8.12.96: Government Gazette 5.12.96 p. 3105 Current State: This information relates only to the provision/s amending the Westpac and Bank of Melbourne (Challenge Bank) Act 1996 Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009 Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 64) on 1.1.10: s. 2(2) Current State: This information relates only to the provision/s amending the Westpac and Bank of Melbourne (Challenge Bank) Act 1996 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Endnotes

Westpac and Bank of Melbourne (Challenge Bank) Act 1996 No. 26 of 1996 36 3. Explanatory Details No entries at date of publication. 1 Preamble: See regulation 4 of the Corporations (Ancillary Provisions) Regulations 2001, S.R. No. 63/2001. 2 S. 3: See endnote 1. 3 S. 38(2): See endnote 1. Endnotes

1 Westpac and Bank of Melbourne (Challenge Bank) Act 1996

SCHEDULE—Repealed 33 ═══════════════ ENDNOTES 34

General Information 34
Table of Amendments 35
Explanatory Details 36

Several definitions and structural concepts determine the Act’s operation. The Act uses the term undertaking of Challenge to mean the business and all property of Challenge (except Westpac excluded assets and rights relating to those assets) vested in or belonging to Challenge immediately before commencement and all liabilities to which Challenge was subject immediately before that time (s 3: “undertaking of Challenge”). The “transferring undertaking” is a context‑dependent term: in Part 3 it means that part of the undertaking of Challenge that vested in Westpac under Part 2 and that, under the Bank of Melbourne agreement, is the transferring undertaking for Part 3 (s 3: “transferring undertaking”).

Commencement mechanics are central. Commencement time is defined as 12 noon Eastern Standard Time on the day Division 1 of Part 2 comes into operation (s 3). The Bank of Melbourne vesting time is defined depending on whether Part 3 is in operation at commencement and for which Part the term is being used (s 3: “Bank of Melbourne vesting time”). These statutory timestamps govern when ownership, contractual rights and liabilities shift by operation of statute (ss 6, 15).

Excluded assets are expressly enumerated. The list in s 3 includes documents required by the Corporations Law, a number of named shareholdings and units, specified registered trade marks (including the “Challenge” mark), and other assets listed in a certificate signed by Westpac’s Chief Executive Officer and received by the Treasurer before the commencement day (s 3: “Westpac excluded asset”). The Act contains parallel provisions for Bank of Melbourne excluded assets in Part 3 (see s 16(2) and s 39(4)-(5) in operation).

Key operational rules transfer contractual status, securities and priorities. Sections 7(1) and 16(1) statutorily substitute Westpac or Bank of Melbourne, as the case may be, into contracts, instruments and undertakings that were binding on or enforceable by or against Challenge immediately before the relevant vesting time. Sections 8(1)(b)-(c) and 17(1)(b)-(c) provide detailed transitional rules for security interests: securities held by Challenge are transferred to Westpac and later to Bank of Melbourne (as relevant), and the transferees are entitled to the same rights, priorities and subject to the same liabilities as Challenge would have been entitled and subject to had the security remained with Challenge.

Customer relationships and negotiable instruments are carried across. Sections 8(1)(a) and 17(1)(a) treat existing relationships between Challenge and customers or depositors as relationships between the transferee bank and those customers, preserving rights and duties, including set‑off and standing instructions. Negotiable instruments naming Challenge are, after the relevant vesting time, to have the same effect as if they were drawn by, drawn on, given to, accepted or endorsed by the transferee, or payable at the transferee’s place of business (ss 8(1)(e), 17(1)(e)).

Evidence and registers are dealt with by statutory deeming and administrative duties. Challenge’s books and documents are admissible and are for purposes of the Evidence Act 2008 to be treated as forming part of Westpac’s or Bank of Melbourne’s records (s 11(1)-(2), s 22(1)-(2), as amended , see Amendment history). Registrars are obliged to make recordings and entries on production of relevant instruments and payment of fees (s 42). Sections 41 and 44 make land and other property the subject of statutory deeming for registration purposes under the Transfer of Land Act 1958 or equivalent registers.

Certificates and conclusive evidence are instruments of administrative finality. Chief Executive Officers may issue certificates about matters relating to operation of the respective Parts (s 40). A certificate under the Act is conclusive evidence of the matters certified except so far as the contrary is established (s 45(1)), and a document purporting to be a certificate is, unless the contrary is established, taken to be such a certificate (s 45(2)). For charges, s 43 treats a CEO certificate lodged with the Australian Securities Commission as complying with a Corporations Law requirement.

Tax and credit transitional regimes are administrative. Westpac and Bank of Melbourne must each pay an amount in lieu of State taxes, duties and charges, the amount being determined in the Treasurer’s opinion and by principles the Treasurer thinks appropriate, and the Treasurer issues a certificate when satisfied payment is made (s 35). For credit law, s 36 suspends the Consumer Credit (Victoria) Act 1995 for particular transition periods and has the Credit Act 1984 apply during those periods; the Minister may extend the periods but not beyond a total of six months (s 36(1)-(4)).

Liability and third‑party protection rules limit third‑party inquiry into excluded assets but preserve internal liabilities. Section 39(1) prevents persons dealing with Westpac or Challenge or registrars from being required to see or inquire whether property is a Westpac excluded asset; s 39(2) deems Westpac to have full power and authority to enter into dealings in relation to a Westpac excluded asset as if it had vested in Westpac under Part 2. Subsections 39(3) and 39(6) qualify that these protections do not affect the liability of Westpac to Challenge or Bank of Melbourne to Westpac for things done in relation to excluded assets.

Finally, the Act preserves application of banking laws. Section 46 expressly states that, except to the extent an exemption is directly contemplated by or necessarily follows from this Act, nothing in the Act exempts Westpac or Bank of Melbourne from written laws relating to companies carrying on banking business.

The primary legal subjects affected are Challenge Bank Limited, Westpac Banking Corporation and Bank of Melbourne Limited, with statutory consequences for their customers, depositors, creditors, employees, registrars and regulators. The Act defines Westpac and Bank of Melbourne by corporate identifiers in s 3 and the preamble, and the statutory transfers operate directly on those entities (preamble; ss 6, 15).

Customers and depositors of Challenge are affected because their relationships are, by statute, treated after the vesting times as relationships with Westpac and later with Bank of Melbourne for the transferring undertaking (s 8(1)(a), s 17(1)(a)). That includes continuity of rights and duties including set‑off and standing mandates. Consequently, day‑to‑day banking relationships, mandates and instructions not revoked remain effective against the transferee banks (s 8(1)(a), s 17(1)(a)).

Counterparties under contracts, leases, licences and other instruments with Challenge are affected because those obligations and benefits transfer to the transferee, unless the agreement relates to an excluded asset, employment, or a provident, benefit, superannuation or retirement fund relating to Challenge employees (s 7(2), s 16(2)). The Act provides that those contracts are to be read as if the transferee had been a party (ss 7(1), 16(1)), which affects creditors, guarantors, lessors, lessees and licensees.

Security holders, secured creditors and persons with bailment relationships are directly affected. Securities held by Challenge transfer to Westpac and later to Bank of Melbourne in relation to the transferring undertaking (ss 8(1)(b), 17(1)(b)). The transferees inherit rights, priorities and liabilities in relation to securities to the same extent as Challenge had (ss 8(1)(c), 17(1)(c)). Bailments and custody relationships are also carried across (ss 8(1)(d), 17(1)(d)).

Employees are affected unevenly. Part 2 expressly does not affect employment of Challenge employees (s 6(2)), but Part 3 contains a statutory transfer of Victorian employees employed by Challenge immediately before the commencement time to Bank of Melbourne with continuity of service and equivalent accrued entitlements (s 18(1)-(2)). That statutory transfer applies to employees in Victoria; employees could in writing elect not to transfer (s 18(4)). The Act also confirms transferred employees are not entitled to additional payments merely because the transfer has occurred (s 18(3)).

Registries and government officers are affected through operational duties and certificate regimes. The Registrar of Titles and Registrar‑General are to make necessary entries on the production of relevant documents and payment of fees (s 42). The Treasurer is given a discretionary role to determine and certify amounts in lieu of State taxes and duties (s 35), and the Minister administering the Credit Act 1984 has power to declare transition end dates and to extend transition periods (s 36(2)-(3)).

Regulatory bodies and corporate law processes are implicated. Section 43 treats a CEO certificate as compliance with s 268(1) of the Corporations Law in respect of charges that Westpac or Bank of Melbourne becomes holder of by operation of the Act; this affects lodgement practices with the Australian Securities Commission (s 43). The Act expressly binds the Crown (s 4) and applies extra‑territorially to the full extent of Victoria’s legislative power (s 5), which may affect parties and assets located outside Victoria to the statutory extent provided (s 5).

Third parties engaging in transactions with Westpac or Bank of Melbourne are shielded from the need to investigate excluded assets or make inquiries about whether particular property is an excluded asset; section 39(1) prevents enquiry or concern in respect of such matters. Yet the Act does not eliminate internal liabilities between the transferring parties and the transferor: s 39(3) preserves Westpac’s liability to Challenge in respect of actions concerning Westpac excluded assets, and s 39(6) preserves Bank of Melbourne’s liability to Westpac for Bank of Melbourne excluded assets.

Finally, lawyers, litigants and courts are affected by procedural provisions that preserve and permit continuation of proceedings. Proceedings pending at the relevant vesting times may be continued by or against the transferee without abatement or discontinuance (ss 9(2), 20(2)), and the courts can enter judgments against both Challenge and the transferee at a party’s request (ss 9(3), 20(3)). Where the wrong party is named in proceedings relating to excluded assets, ss 10 and 21 allow amendment to substitute the correct party without orders for costs against the amending party.

The Act creates several express duties on the transferees, registrars and the Treasurer, and corresponding statutory rights for transferees, counterparties and customers.

Duties on Westpac and Bank of Melbourne , payment in lieu and certificates

Westpac must pay to the Treasurer an amount in lieu of all State taxes, duties and charges attributable to the transfer of the undertaking of Challenge located in Victoria, the amount to be “in the opinion of the Treasurer” equal to those taxes and charges; Bank of Melbourne has a similar duty in relation to the transfer of the transferring undertaking (s 35(1)-(3)). The Treasurer must issue a certificate when satisfied payment has been made (s 35(4)-(5)). The amount is determined by the Treasurer “in accordance with such principles as the Treasurer thinks appropriate” (s 35(3)), which establishes an administrative duty to submit to the Treasurer’s process for determination and to secure the certificate.

Duties on registrars and registries

The Registrar of Titles must, on request and delivery of instruments and payment of fees, make any recordings in the Register necessary because of the operation of the Act (s 42(1)). The Registrar‑General must, on production of relevant instruments or documents, make entries on records of enrolment of any Crown grant and on any memorials related to land as necessary (s 42(2)). Persons or authorities keeping registers for property types must accept CEO certificates and regard statutory transfer requirements as complied with where certificates are lodged (s 44(1)-(2)).

Duties to treat contracts, securities and relationships as transferred

The transferees are statutorily vested with the undertaking and with contracts, securities, bailments and negotiable instruments, and are endowed with the same rights and priorities and subject to the same liabilities as Challenge had immediately before the vesting times (ss 7(1), 8(1)(b)-(c), 16(1), 17(1)(b)-(c)). These are obligations created by statute rather than by novation, and the transferees must observe the attendant liabilities and priorities as if they had been the party originally.

Rights of transferees

Westpac and Bank of Melbourne have the right to enforce contracts, securities and instruments that transferred to them (ss 7(1), 16(1)). They are also statutorily entitled to use customer information held by Challenge immediately before the commencement time (s 8(1)(f), s 17(1)(f)). For charges, a CEO certificate lodged with the Australian Securities Commission is to be taken as compliance with Corporations Law s 268(1) requirements (s 43).

Rights and continuing protections for counterparties and third parties

Third parties dealing with the transferees need not be concerned to see whether property is an excluded asset or be affected by notices that property is an excluded asset (s 39(1), s 39(4)). The transferees are deemed to have full power and authority to enter into dealings in relation to excluded assets as if those assets had vested under the Act (s 39(2), s 39(5)). Those provisions are rights of transactional certainty for third parties.

Rights and duties in litigation

Actions, arbitrations and proceedings pending at the commencement or vesting times may be prosecuted and continued by or against the transferees as if the Act had not been enacted (ss 9(2), 20(2)). The courts may, on request of a party in whose favour a judgment is being made, enter judgment against both Challenge and the transferee (ss 9(3), 20(3)). Parties may seek leave to amend court documents to substitute Challenge for Westpac or Bank of Melbourne where an excluded asset or employee matter was incorrectly stated (ss 10(1)-(3), 21(1)-(3)).

Employee rights and duties

For employees in Victoria, Bank of Melbourne is statutorily deemed to have appointed those Victorian Challenge employees with effect from the commencement time, and the employees have equivalent accrued entitlements to long service leave, sick leave, recreation leave or other like benefits and continuity of service for all purposes (s 18(1)-(2)). Employees may elect in writing not to transfer (s 18(4)). Section 18(3) confirms transferred employees are not entitled to receive any payment or other benefit merely by reason of having ceased to be an employee of Challenge because of this Part.

Evidentiary rights and duties

Books and documents that would have been evidence for or against Challenge continue to be admissible as evidence for or against Westpac or Bank of Melbourne, and the books of account of Challenge are deemed to form part of the transferees’ records for purposes of the Evidence Act 2008 (s 11(1)-(2), s 22(1)-(2), as amended). CEO certificates on their face are conclusive evidence of the matters certified unless contrary is established (s 45(1)-(2)).

Protections against civil default and consent deemed given

Section 37(1) prevents anything done under the Act from being regarded as placing Challenge, Westpac or Bank of Melbourne in breach of contract, in breach of confidence or guilty of a civil wrong, or as fulfilling conditions that allow termination of agreements, or releasing sureties. Section 37(2) deems any advice or consent that would otherwise be required to have been given, where necessary to carry out actions authorised by the Act.

Preservation of banking law compliance

Section 46 requires that, except where an exemption is directly contemplated by or necessarily follows from the Act, Westpac and Bank of Melbourne are not exempted from written laws relating to companies carrying on the business of banking. That creates a continuing duty to comply with applicable banking laws.

The Act itself contains very few express penalty provisions or criminal offences. It does not create monetary fines or criminal sanctions tied to breaches of the transfer mechanics within the text provided. Enforcement is therefore achieved through a combination of pre‑existing law, civil process and administrative mechanisms set out in the Act.

Civil enforcement through continuity of proceedings

The Act preserves and facilitates civil remedies and the continuation of proceedings. Any action, arbitration or proceeding pending at the commencement time or Bank of Melbourne vesting time, or arising after those times in respect of antecedent contracts or acts, may be prosecuted and continued and enforced by or against the transferee as if the Act had not been enacted (ss 9(1)-(2), 20(1)-(2)). The courts retain the power to enter judgment against both Challenge and the transferee when requested by a party in whose favour judgment is being entered (ss 9(3), 20(3)). Those provisions create a pathway for creditors and claimants to enforce rights despite statutory transfers.

Administrative conclusive evidence and registry mechanisms

The Act confers administrative tools that operate as practical enforcement mechanisms. CEO certificates can be lodged to evidence vesting and to satisfy regulatory filing or registration requirements: s 43 treats such a certificate as compliance with s 268(1) of the Corporations Law for charges; ss 40 and 45 make CEO certificates conclusive evidence of the matters certified, subject to being rebutted. Registrars are obliged to make entries on production of instruments and payment of fees (s 42), which operationalises property transfer and helps enforce property rights.

Treasurer and Ministerial enforcement levers

The Treasurer’s role in determining amounts in lieu of State taxes and in issuing certificates upon satisfaction of payment (s 35(1)-(5)) creates an administrative enforcement lever: transferees must obtain the Treasurer’s certificate to evidence payment. The Minister responsible for the Credit Act 1984 has the power to declare transition end dates and to extend transition periods within the statutory limit of six months (s 36(2)-(3)), which is an administrative control over the temporal application of credit law.

Protections for third parties and residual liabilities

Sections 39(1) and 39(4) protect third parties and registrars from being required to inquire into excluded assets when dealing with Westpac or Bank of Melbourne. That limits the scope for enforcement actions against those third parties for failure to investigate, and therefore reduces transactional risk for third parties. However, s 39(3) and s 39(6) preserve liability of the transferee to the transferor in relation to excluded assets, which means internal claims between the corporate parties remain enforceable.

No expressed criminal penalty for false certificates

The Act provides that a document purporting to be a certificate is, unless the contrary is established, taken to be such a certificate (s 45(2)). The Act does not set out a specific penalty for issuing a false certificate; instead the statutory scheme leaves remedy to being able to establish the contrary in legal proceedings. That leaves courts as the venue to challenge certificates and remedy any misuse or misrepresentation.

Practical enforcement risks and court involvement

Disputes that can arise include claims over whether a particular asset is an excluded asset, priority disputes between competing security holders carried across by the Act, claims by customers asserting that instructions were not properly carried over, employee claims where transfer or entitlement calculations are disputed, and claims challenging the Treasurer’s determination of the amounts in lieu. The Act provides procedural pathways to pursue these claims: amendment of writs to substitute parties (ss 10, 21), continuation of causes of action (ss 9, 20), and reliance on CEO certificates with the onus to establish contrary evidence (s 45).

Preservation of banking law enforcement

Section 46 emphasises that the Act does not create a blanket exemption from banking or corporate law. Therefore regulator enforcement under existing banking, prudential, corporate or consumer credit statutes remains available where conduct falls within those regimes’ scopes.

In sum, enforcement under this Act is predominantly civil and administrative rather than penal. Courts remain central for resolving disputes, rebutting certificates and enforcing rights, while statutory certificates, registrar entries and Treasurer/Minister decisions provide administrative mechanisms that effect transfers and create practical compliance and enforcement architecture.

The Act explicitly cross‑references and interacts with several other statutory regimes and registers. It both relies on and preserves the operation of external statutes and administrative processes.

Corporations Law and charges

Section 43 is explicit: s 268(1) of the Corporations Law is to be taken to have been complied with in respect of all charges of which Westpac or Bank of Melbourne becomes the holder by virtue of this Act if a certificate signed by the Chief Executive Officer is lodged with the Australian Securities Commission stating the undertaking has become vested. The Act therefore creates a specific statutory mechanism to satisfy Corporations Law filing obligations with an administrative certificate rather than requiring the usual documentary filings that would otherwise be necessary.

Banking Act 1959 (Commonwealth)

The preamble records that consent was given under s 63 of the Banking Act 1959 to the amalgamation and to the acquisition by Bank of Melbourne of part of Challenge’s banking business (preamble). Those factual statements in the preamble indicate that Commonwealth regulatory consent had been obtained as part of the transactions the Act gives statutory effect to, though the Act itself does not replicate those Commonwealth requirements.

Transfer of Land Act 1958 and land registration

Section 41 provides that where land of which Challenge is the registered proprietor is by virtue of Part 2 vested in Westpac, Westpac is to be deemed to be the registered proprietor for the purposes of the Transfer of Land Act 1958 and the land may be dealt with accordingly. Section 42 imposes recording duties on the Registrar of Titles and Registrar‑General to make necessary recordings and entries on production of relevant instruments and payment of fees. Section 44(1) extends a certificate process to other registers maintained under written laws concerning property types.

Evidence Act 2008

The Act was amended to deem the books of account of Challenge to form part of the records belonging to or kept by Westpac or Bank of Melbourne for the purposes of the Evidence Act 2008 (s 11(2) and s 22(2), as substituted by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 , see Amendment history). That amendment aligns evidentiary treatment of accounting records with contemporary evidence legislation.

Consumer credit laws and the Credit Act

Section 36 sets out a transitional regime in which the Consumer Credit (Victoria) Act 1995 does not operate during transition periods for the undertaking, transferring undertakings and the business of Challenge, and instead the Credit Act 1984 (as in force before commencement of Part 2 of the Consumer Credit (Victoria) Act 1995) applies during those periods (s 36(1)). The Minister administering the Credit Act 1984 has power to extend transition periods but not beyond a total of six months (s 36(3)). Section 36(2) further provides that sections 19A(1) and 19B of the Credit Act 1984 apply as if reference to “the commencement day” were a reference to the day after the transition period ends. Those provisions operate as temporary rules for consumer credit regulatory application and create an interface between the Act and Victorian credit regulation.

Business Names Act 1962 and use of trading name

Section 19(1) permits Bank of Melbourne, during a six‑month transition period beginning at the Bank of Melbourne vesting time, to carry on business in Victoria under the business name “Challenge Bank Limited” as if that name were registered under the Business Names Act 1962. That statutory permission interacts with the Business Names Act and creates an exception for trading name use, but s 19(2) clarifies the subsection does not have effect as an exemption from s 46 (the Act does not exempt banks from other written laws relating to banking).

Corporations Law and related body corporate rules

Section 38(2) refers to s 9 of the Corporations Law in stating that the effect of service provisions ceases upon Challenge ceasing to be a related body corporate of Westpac within the meaning of that Corporations Law provision. The Act therefore uses Corporations Law concepts to modulate its service rules.

Registries and local land law

The Act’s instructions to registrars to make necessary amendments (s 42), to treat statutory vesting as effecting registered proprietor status under the Transfer of Land Act (s 41), and to accept CEO certificates for transfers of other property types (s 44) interface with the statutory regimes that govern land and property registration in Victoria and other jurisdictions.

Evidentiary and procedural law

The Act’s provisions to allow continuation of proceedings (ss 9, 20) and for amendment of court documents where the erroneous party was named (ss 10, 21) interact with procedural rules in courts and tribunals. Those procedural interactions are designed to minimise procedural disruption caused by the statutory transfers.

Preservation of other written laws

Section 46 provides a gatekeeper rule: except where an exemption is directly contemplated by the Act or is a necessary consequence, nothing in the Act exempts Westpac or Bank of Melbourne from written laws relating to companies carrying on banking business. This preserves the enforcement and regulatory scope of other statutes, including prudential rules, consumer protection laws and corporate law obligations.

In short, the Act constructs statutory transfers but relies on certificates, registrar entries and ministerial determinations to interact with the Corporations Law, Transfer of Land Act, evidence legislation, consumer credit regimes and registries, while preserving the continuing applicability of broader banking and corporate law.

The Act as presented contains a short recorded amendment history in the endnotes. Two key historical points are recorded in the Act’s endnotes and sections.

Commencement and repeal of parts

The Act’s endnotes record the dates on which parts of the Act commenced. Part 1 (sections 1-5) and section 35 commenced on 2 July 1996 (s 2(1) and endnotes). Section 36 commenced on 1 November 1996 (Government Gazette 31 October 1996 p 2811). Division 1 of Part 2 (sections 6-12), Part 3 (sections 15-24), and sections 37-46 commenced on 8 December 1996 (Government Gazette 5 December 1996 p 3105). Section 24 repealed s 2(5), Division 2 of Part 2 and Part 4 (s 24; Part 4 and Schedule 1 are shown in the printed Act as repealed by s 24). The effect is that Division 2 of Part 2 and Part 4 were repealed unproclaimed by s 24 (see endnotes and s 24).

Statute Law Amendment (Evidence Consequential Provisions) Act 2009

The Tabulated amendments show the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (No. 69/2009) amended this Act. The endnotes specify that s 54 (Sch. Pt 1 item 64) of that amending Act commenced on 1 January 2010. The substantive textual changes recorded in the body are:
- Section 11(2) was substituted by No. 69/2009 s 54 (Sch. Pt 1 item 64.1). That subsection now deems the books of account of Challenge to form part of the records belonging to or kept by Westpac for the purposes of the Evidence Act 2008.
- Section 11(3) was repealed by No. 69/2009 s 54 (Sch. Pt 1 item 64.3).
- Section 22(2) was substituted by No. 69/2009 s 54 (Sch. Pt 1 item 64.2), similarly deeming the books of account of Challenge in relation to the transferring undertaking to form part of the records of Bank of Melbourne for Evidence Act 2008 purposes.
- Section 22(3) was repealed by the same instrument (Sch. Pt 1 item 64.3).

The endnotes explicitly record the title and assent date of the principal Act (Westpac and Bank of Melbourne (Challenge Bank) Act 1996, No. 26/1996, assented 2 July 1996). They also confirm the long title and the preamble facts (endnotes §1) and list the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 in the Table of Amendments (endnotes §2).

Repealed provisions

The Act itself repealed certain of its own sections by s 24. The Table of Provisions printed at the head of the text shows Div. 2 of Part 2 and Part 4 as repealed. The Schedule of the Act is likewise marked as repealed. The endnotes record that s 24 commenced on 8 December 1996, effecting those repeals (endnotes).

No other amendments are listed in the supplied endnotes; the Explanatory Details entry has “No entries at date of publication” (endnotes §3). The printed Act includes the substitution and repeals from 2009 relevant to evidentiary deeming.

Practical consequence of amendment history

The 2009 amendments align the evidentiary deeming in ss 11 and 22 with the Evidence Act 2008, ensuring Challenge’s books are treated as part of the transferees’ records for admissibility. The repeal of Div. 2 of Part 2 and Part 4 by s 24 reduced the volume of transitional legislative machinery that was originally drafted, while the commencement schedule shows the staged implementation across 1996.

Users should consult current parliamentary versions and the relevant Gazette notices for precise commencement and any subsequent amendments beyond those recorded in the endnotes to this consolidated text.

The Act’s text and endnotes do not name any judicial decisions or litigation that interpret or apply it. The endnotes record ministerial second reading speeches and commencement dates (endnotes §1) and the 2009 Statute Law Amendment (Evidence Consequential Provisions) Act as an amending instrument (endnotes §2), but the material supplied contains no cases, reported judgments or tribunal determinations applying or construing the Act.

Because the Act provides statutory mechanisms that alter party status in contracts, register entries and litigation, it creates predictable loci for disputes even though no decisions are reported in the provided text. The following categories identify where litigation could arise and the statutory hooks relevant to resolution; these are descriptive statements rooted in the Act’s provisions rather than reports of cases:

Whether particular property is an excluded asset: the Act lists particular excluded assets (s 3) and provides that third parties need not inquire whether property is an excluded asset (s 39(1)). Litigation could arise if a party asserts an asset was excluded and therefore not transferred or if internal parties dispute liabilities arising from dealings with excluded assets. Section 39(3) preserves Westpac’s liability to Challenge in respect of dealings in relation to Westpac excluded assets, which could be a ground for internal claims.
Security and priority disputes: the Act transfers securities and entitles transferees to the same rights and priorities (ss 8(1)(b)-(c), 17(1)(b)-(c)). Disputes between secured creditors as to priority or the extent of security coverage could lead to litigation, with the courts having to apply the Act’s deeming provisions to resolve competing claims.
Continuation of proceedings and substitution of parties: the Act allows pending actions to be continued by or against the transferees (ss 9(2), 20(2)) and enables amendment of court documents where the wrong corporate party was named (ss 10, 21). Litigation could occur over whether the statutory substitution was effective in particular circumstances, or whether courts should exercise discretion when a certificate is used to establish matters.
Employee entitlement disputes: s 18 provides that Victorian employees are to be regarded as appointed by Bank of Melbourne with continuity of service and equivalent accrued entitlements, and allows employees to elect not to transfer in writing (s 18(4)). Disputes about the calculation of entitlements, whether an employee validly elected not to transfer, or whether particular employees fall within the statutory description could give rise to litigation.
Challenges to Treasurer or Ministerial decisions: s 35 gives the Treasurer discretion to determine amounts in lieu of State taxes and duties “in accordance with such principles as the Treasurer thinks appropriate”. Section 36 gives the Minister power to declare the end of transition periods and to extend them within limits. Those administrative decisions could be challenged by judicial review or in other proceedings on conventional grounds (jurisdictional error, failure to observe statutory limits, procedural fairness) if affected parties establish standing and legal grounds; the Act records the discretionary power but does not specify judicial review mechanisms.
Rebuttal of certificates: the Act makes CEO certificates conclusive except so far as the contrary is established (s 45). This creates a litigation dynamic in which the certificate is prima facie decisive and an opposing party bears the burden of establishing the contrary, potentially leading to evidentiary disputes and court scrutiny of the factual basis for certificates.

Although the Act itself provides these procedural devices and deeming mechanisms to reduce litigation friction, litigation remains the mechanism to resolve factual disputes, to rebut certificates and to vindicate contractual or proprietary rights. Users seeking precedent should consult up‑to‑date case law databases; none of the cases are supplied in the Act’s text or endnotes.

The Act contains multiple provisions that can produce non‑obvious practical consequences. Below are specific issues to watch for, anchored to the statutory text.

Treasurer’s discretionary determination of tax in lieu (s 35)

The Act requires Westpac and Bank of Melbourne to pay sums “in the opinion of the Treasurer” equal to State taxes, duties and charges for which they would otherwise be liable, and the amount is to be determined by the Treasurer “in accordance with such principles as the Treasurer thinks appropriate” (s 35(1)-(3)). There is no statutory formula or objective standard in the Act for calculating the amount. That grants the Treasurer broad administrative discretion and creates potential uncertainty and negotiation risk for the transferees. Parties should preserve records of the transfers and expect administrative engagement with the Treasurer’s office.

Certificates are conclusive but rebuttable (ss 40, 45)

CEO certificates can be decisive evidence of matters certified and are treated as conclusive for all purposes, “except so far as the contrary is established” (s 45(1)-(2)). Practically, this means certificates produce substantial prima facie legal effect, but courts may still be asked to examine and overturn certificates where contrary evidence exists. Preparing robust documentary support before issuing or relying on certificates is therefore prudent.

Excluded assets and third‑party inquiry (s 3, s 39)

The Act lists particular excluded assets (s 3). Section 39(1) prevents persons dealing with Westpac or Challenge from being required to see or enquire whether property is a Westpac excluded asset. That shifts transactional risk away from third parties to the transferees, but s 39(3) preserves Westpac’s liability to Challenge in respect of dealings with excluded assets. There is therefore potential for internal claims and indemnity disputes between the corporate parties. Counterparties that nevertheless suspect an asset may be excluded should seek certificates or contractual protections rather than relying solely on the Act’s shield.

Employment treatment is staged and geographically limited (ss 6(2), 18)

Part 2 expressly does not affect employment (s 6(2)), while Part 3 transfers Victorian employees to Bank of Melbourne with continuity of service and equivalent accrued entitlements (s 18(1)-(2)). An employee employed outside Victoria or a Challenge employee in Victoria who elects in writing not to become a Bank of Melbourne employee is not covered by the s 18 transfer (s 18(4)). Employers must manage communications, elections and entitlements carefully and maintain records demonstrating continuity and calculation of accrued entitlements.

Consumer credit transitional complexity (s 36)

Section 36 suspends the Consumer Credit (Victoria) Act 1995 during transition periods and applies the Credit Act 1984 in its place during those periods. The Minister can publish a notice identifying the end of the period and may extend the transition period, but not beyond a total of six months (s 36(3)-(4)). Lenders and advisors must track the transition period dates and Ministerial notices, because the regulatory regime governing consumer credit will change back after the transition period ends.

Registers and practical filing steps (ss 41-44)

The Act deems transferee banks to be registered proprietors for transfer of land purposes (s 41) and requires registrars to make entries on request and payment of fees (s 42). For property types not covered by the Transfer of Land Act, other registers will accept CEO certificates (s 44). Practitioners must ensure the correct CEO certificates and instruments are lodged, and that payment of relevant registry fees accompanies requests for amendments, to avoid transactional delay.

Corporations Law interaction for charges (s 43)

Lodgement of CEO certificates with the Australian Securities Commission is treated as compliance with s 268(1) of the Corporations Law in respect of charges transferred by the Act (s 43). Practitioners should still verify ASIC registry practice and ensure certificates are correctly worded and signed by the correct officer to achieve the intended effect.

Service rules change when related body corporate status ends (s 38(2))

Section 38 deems service on Westpac to be service on Challenge and vice versa, but that rule ceases to apply when Challenge ceases to be a related body corporate of Westpac within the meaning of the Corporations Law (s 38(2)). Parties relying on service rules should monitor corporate relationship changes and confirm service methods remain effective.

No specific penalty for false certificates in the Act (s 45)

While certificates are conclusive unless the contrary is established, the Act contains no express criminal sanction for issuing a false certificate. The primary remedy is to establish the contrary in legal proceedings. That makes the evidentiary and reputational risk of issuing inadequate certificates material.

The Act preserves other laws (s 46)

Section 46 preserves the applicability of other written laws relating to companies carrying on banking business. A common error might be to interpret the statutory transfers as creating exemptions from licensing, prudential or consumer obligations. The Act does not broadly exempt transferees from those regimes unless such exemption is directly contemplated by or a necessary consequence of the Act.

In practice these “gotchas” translate into concrete steps: secure Treasurer certificates and be ready to justify the tax in lieu, prepare evidence packs before issuing CEO certificates, explicitly document employee elections and entitlement computations, coordinate with ASIC and land registries on lodgement procedures, and ensure compliance with consumer credit transition arrangements. The statutory protections that ease transactional friction are powerful but not absolute; understanding their limits is essential.

The Act prescribes particular administrative steps and creates implied operational tasks that transferees, registrars, creditors and advisers should follow. Below is a practical checklist, mapped to the controlling provisions.

For Westpac and Bank of Melbourne (corporate transferees)

Pay amounts in lieu of State taxes and obtain Treasurer certificates: Westpac and Bank of Melbourne must each pay sums in lieu of State taxes, duties and charges as determined by the Treasurer and must obtain a Treasurer’s certificate upon satisfaction that payment has been made (s 35(1)-(5)). Action: engage with the Treasurer’s office early, retain clear evidence of valuations and the basis for any claims, and obtain the certificate for lodgement with registries or for corporate records.
Issue and preserve Chief Executive Officer certificates: CEOs may certify matters relating to operation of Parts 2 and 3 (s 40). Action: when issuing a certificate ensure it identifies the statutory basis for vesting, is signed by the authorised CEO, and that supporting documentation is archived to enable rebuttal only if appropriate evidence is present.
Lodge CEO certificates with ASIC in respect of charges: s 43 treats such certificates as complying with Corporations Law s 268(1). Action: prepare and lodge the CEO certificate with the Australian Securities Commission to regularise charges transferred by the Act, and keep proof of lodgement receipt.
Coordinate with registrars for land and property entries: s 42 requires the Registrar of Titles and Registrar‑General to make recordings or entries on delivery of relevant instruments and payment of fees. Action: prepare the conveyancing instruments or statutory instruments, pay required fees and request the necessary recordings; provide the CEO certificate where appropriate to support the entry per s 41 and s 44.
Preserve and make available accounting and business records: s 11(2) and s 22(2) deem Challenge’s books to be part of Westpac’s/Bank of Melbourne’s records for Evidence Act purposes. Action: maintain originals and certified copies and be ready to produce them in proceedings or regulatory review.
Respect employee statutory transfers and election rights: for Victorian employees, ensure continuity of service and accrual calculations are documented and provide employees with the option in writing to elect not to transfer (s 18(1)-(4)). Action: notify employees of statutory status, document accrual equivalence computations, and retain election letters.
Comply with banking and consumer credit laws: s 46 preserves obligations under other banking laws; s 36 governs consumer credit transition. Action: ensure ongoing compliance with prudential, licensing and consumer protection obligations, and monitor Ministerial notices and the transition period timeline under s 36.
Treat customer mandates and negotiable instruments as continuing but verify revocations: ss 8(1)(a), 8(1)(e) and their Part 3 equivalents deem customer instructions and negotiable instruments to continue. Action: implement systems to honour standing instructions, and provide customers with notice and a simple revocation channel where they wish to revoke mandates.

For registrars and government officers

Accept CEO certificates and make entries on request: when presented with the relevant instrument and payment of fees, make recordings and entries necessary due to the Act (s 42). Action: develop administrative checklists for certificate format, signature verification and fee schedules.
Deal with land transfers under Transfer of Land Act deeming: s 41 deems Westpac or Bank of Melbourne to be the registered proprietor where land vested under the Act. Action: apply the statutory deeming and effect transfers in the Register Book without demanding additional proof beyond the statutory certificate and usual fees.

For counterparties, creditors and secured parties

Treat statutory transfers as effecting party substitution unless the transaction relates to an excluded asset, employment or specified funds: ss 7(1), 16(1), and the exclusions in ss 7(2) and 16(2) govern. Action: rely on CEO certificates to confirm vesting, but where your contract is linked to excluded assets or employment, seek express confirmation or contractual novation if prudent.
Rely on s 39 protection but preserve contractual safeguards: while the Act relieves third parties from having to inquire into excluded assets (s 39(1), s 39(4)), if your exposure is material insist on a CEO certificate or indemnity from the transferee to avoid indirect recourse risk. Action: negotiate contractual representations and warranties or insist on retention of original security documentation until administrative filings are complete.

For legal practitioners and litigators

Amend court documents promptly where the party named is incorrect for excluded assets matters: ss 10 and 21 permit amendment to substitute the correct party without orders for costs against the amending party. Action: file motions to amend and provide proof of the statutory substitution where necessary.
Use CEO certificates as prima facie proof but prepare to rebut where necessary: s 45 makes certificates conclusive except where the contrary is established. Action: secure evidentiary material supporting or challenging certificates; be prepared for the other side to seek discovery to rebut a certificate’s assertions.

For compliance officers and internal controls

Record the timings and operative vesting times precisely: commencement time and Bank of Melbourne vesting time drive when statutory effects occur (s 3). Action: make formal entries in corporate ledgers, reconcile balances and securities at the defined timestamps, and document procedural steps taken on those dates.
Maintain audit trails for transferred securities and customer instructions: ss 8 and 17 transfer securities and customer mandates. Action: keep contemporaneous records that demonstrate the chain of title and the treatment of future advances secured by transferred securities.

For tax and finance teams

Engage with the Treasurer regarding amounts in lieu: s 35 requires payment in lieu as determined in the Treasurer’s opinion. Action: submit supporting calculations to the Treasurer, engage tax counsel if necessary, and obtain the Treasurer’s certificate; retain records for audit.

For consumer credit compliance

Track transition periods and Ministerial notices: s 36 permits the Minister to declare the end of transition periods and to extend them up to a total of six months. Action: monitor Government Gazette notices and prepare to transition back to the Consumer Credit (Victoria) Act 1995 regime when the period ends.

In all cases maintain documentary evidence: CEO certificates, Treasurer certificates, lodgement receipts, election letters of employees, instruments delivered to registries, and correspondence with regulators. The Act’s architecture prioritises documentary and administrative evidence (certificates, lodgements, registrar entries) to operationalise statutory transfers, and compliance requires disciplined record keeping and timely lodgements consistent with the statutory procedures set out in Parts 2, 3 and 5.

Westpac and Bank of Melbourne (Challenge Bank) Act 1996

Plain English Summary

Deep Dive

What it does

Current sections

Westpac and Bank of Melbourne (Challenge Bank) Act 1996

Source text: opening excerpt

1 Westpac and Bank of Melbourne (Challenge Bank) Act 1996

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply