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Division 2—Repealed 14
13, 14 Repealed 14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PART 4—Repealed 23
25–34 Repealed 23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SCHEDULE—Repealed 33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
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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