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QUEENSLAND
BUILDING SOCIETIES ACT 1886-1976
[Reprintedas at 1July, 1980]
Building Societies Act of 1886, SOVic. No. 34 As amendedby
Building Societies Act Amendment Act of 1915,6 Geo. 5No. 10 Building Societies Acts Amendment Act of 1942, 6 Geo. 6 No. 15 Building Societies Acts Amendment Act of 1943,7Geo. 6 No. 22 Building Societies Acts Amendment Act of 1952,1Eliz. 2No. 23 Building Societies Acts Amendment Act of1956, 5Eliz. 2No. 22 Building Societies Acts Amendment Act of1958,7Eliz. 2No. 52 Building Societies Acts Amendment Act of1967, No. 7
~uilding Societies Acts Amendment Act of 1968, No. 18
Building Societies Act andAnother Act Amendment Act1971, No. S6 Building Societies Act Amendment Act 1972, No. 2S
Building Societies Act Amendment Act 1974, No. 48 Building Societies Act Amendment Act 1975, No. 77 Building Societies Act Amendment Act 1976, No. 28
Building Societies Act AmendmentAct 1976 (No.2), No. 49 An Act to Alnend the Law relating to Building Societies
[Assentedto 2 December 18861 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same,
as follows;-
PRELIMINARY
1. Short title. This Act may be cited as The Building Societies Act of 1886.
Collective title conferred by Act of 1976 (No.2), No. 49, s. 1 (3).
2. Interpretation. In this Act, unless the context otherwise indicates, the following terms have the several meallings set against them respectively:-
"Advisory Committee "-The Housing and Building Societies Advisory Committee as constituted from time to time under section57 ofthe Co-operative Housing Societies Act 1958-1974 and constituted by section 44A of this Act to be the advisory committee under this Act;
2 s.2 BUllJDING SOCIETIES ACT 18'86-1~6
U Building Society" or" Society "-A Society having for its object, or one of its objects, the raising of a fund by payments, subscriptions, or contributions made by its members, and the application of such fund in assisting its members to obtain freehold or leasehold property, or in the making of loans or advances to its members or others, upon the security of freehold or leasehold property with the periodical repay- ment of principal and interest by instalments;
" Registered Society"-A Building Society registered under this Act or The Friendly Societies Act, 1876;
" Existing Society"-A Building Society existing at the passing of this Act, and which has been registered under The Friendly Societies Act, 1876, or any Act thereby repealed;
" Terminating Society"-ASociety which by its rules is to terminate at a fixed date, or when a certain event or result specified in its rules happens or arrives;
",Permanent Society"-A Society which has not by its rules any fixed date or certain event or result when it is to terminate;
" Board "-The Board of Directors of a Registered Society;
" Director"-Includes any person occupying the position of director of a Registered Society by whatever name called, or acting in that capacity in the business or operations of the Registered Society pursuant to its rules, this Act oraresolution duly passed by the Society's Board and any person in accordance with whose directions or instructions a director, or that other person whilst so acting, is accustomed to act;
" Employee "-Includes any person in the paid employment other than as a director of a Registered Society (whether by way of salary, allowance, fee, stipend, wage, commission or other payment of a like nature) and any other person or body of persons who or which provides the Society with secretarial or administrative services and any person in the paid employment of that other person or body;
u Officer "-Includes a director or an employee by whatever name called or other person who acts or gives directions in regard to the business, operations or affairs of a Registered Society;
u Advertisement"-Anadvertisementin orbyanymedium inviting business or making known the activities of the Registered Society or theassociation or society proposing to beregistered as a Registered Society named therein and includes a circular or handbill inviting business or making known the activities of a Registered Society and" advertise" has a corresponding meaning;
c, Starr-Bowkett Society "-A Building Society which by its Rules determines by lot (whether on every or any occasion) the members who may borrow money therefrom;
" Crown Law Officer "-The Attorney-General, Minister for Justice or Solicitor-General;
BUILDING SOCIETIES ACT 1886-1976 s.3 3
" Investing Member"-A member of a Society who participates in the profits of the Society, whether his shares have been borrowed or advanced on or not;
"Investing Shares "-Shares the holders of which participate in the profits of the Society, whether such shares have been borrowed or advanced on or not;
" Inspector "-A person who holds the appointment of inspector for the purposes of this Act;
" Certified Accountant"-A person who-
(a) is a member of the Institute of Chartered Accountants in Australia or the Australian Society of Accountants;
(b) holds-
(i) the certificate of an associate in accountancy of the University of Queensland;
(ii) the certificate in accountancy of a recognised technical college in Australia; or
(iii) the associate diploma in accountancy (or its equivalent) of a recognised Institute of Technology or College of Advanced Education; or
(c) is a registered company auditor in any State or Territory of the Commonwealth;
" Court"-The Supreme Court of Queensland;
" Prescribed "-Prescribed by this Act;
" Registrar"- The Registrar of Building Societies appointed for the purposes of this Act, and includes any person for the time being discharging the duties of the office of Registrar;
" Registrar of Building Societies "-The Registrar of Commercial Acts, Brisbane appointed under the Administration of Commercial Laws Act 1962-1971;
" This Act "-This Act and all regulations made thereunder.
As amended byAct of 1942, 6 Geo. 6 No. 15, s. 2; Act of 1958, 7 Eliz. 2 No. 52, s. 2; Act of 1968, No. 18, s. 2; Act of 1975, No. 77, s. 2; Act of 1976, No. 28, s. 3.
FORMATION OF BUILDING SOCIETIES
3. Formation of new societies. (1) Subject to this Act, any 100 or more persons who have attained the age of18 years, who are by the rules of the proposed Society qualified to be members of the Society when registered may form aSociety.
(2) A Building Society shall be formed in the following manner:- (a) 100 or more persons who are qualified pursuant to subsection
(1) shall be present at a meeting called for the purpose of forming the Building Society and at every subsequent and adjourned meeting called or adjourned for that purpose;
(b) at that meeting or at any such subsequent or adjourned meeting there shall be presented a copy of the rules intended for registration;
4 SSe3A, 3B B:UILDING SOCIETIES ACT 1886-1976
(c) where at least 100 of the persons who are qualified pursuant to subsection (1) present at that meeting or at any such subsequent or adjourned meeting-
(i) approve the rules so presented, with or without amendment and sign two copies of the rules each of which signatures shall be attested by a witness;
(ii) sign an application for membership of the Building Society which application shall state the respective names, addresses and occupations and the number of shares for which each will respectively subscribe,
all the persons present as aforesaid shall proceed to elect the first directors in accordance with the rules so approved.
Substituted by Act of 1968, No. 18, s. 3 (as from 8 April 1968); as amended by Act of 1976, No. 28, s. 4.
3A. Application for registration. (1) An application for registration of a Building Society shall be made in the prescibed manner within two months after the election of the directors pursuant to section three of this Act or within such further period as the Registrar may allow.
(2) The application shall be accompanied by- (a) the prescribed registration fee;
(b) a statutory declaration from the chairman of the meeting and intended secretary as to the compliance with section three of this Act;
(c)the two copies of the proposed rules signed as prescribed by section three of this Act;
(d) a list containing the full name and the occupation of each director and full particulars of all other directorships, if any, held byeach director;
(e) a list containing the full name and the occupation and address of each applicant for membership and the number of shares subscribed for byhim.
Inserted by Act of 1968, No. 18, s. 3 (as from 8 April 1968); as amended by Act of 1976, No. 28, s. 5.
3D. Registration of society. (1) If the Registrar-
(a) is satisfied that the Building Society has complied with the requirements of this Act;
(b) approves the proposed rules or approves the proposed rules subject to such modifications as he thinks fit;
(c) is satisfied that from the date of its registration the Building Society will have available to it not less than $2 000 000 (whether byway of share capital or by way of loan or deposit) and that such amount-
(i) will include members' share capital of not less than
$1 000000; and
(ii) will include funds that aggregate not less than $500 000 which funds are expressly prohibited by the agreement or agreements relating to the subscription of the capital or,
BUILDING SOCIETIDS Acr 1886-1976 S.3B 5
as the case may be, the loan or deposit and by the rules from being withdrawn or repaid within the period of ten years after the date of their receipt by the Society; and
(iii) will to the extent of not less than $500 000 be lodged by a corporation or corporations within the class prescribed;
(d) is satisfied that there are reasonable grounds for believing that the Building Society if registered, will be able to carry out its objects successfully,
he shall register the Building Society and shall issue a certificate of incorporation in the prescribed form to the effect that the Building Society is registered under this Act on and from the date specified in the certificate.
(2) The Registrar shall forward to the Building Society' the certificate of incorporation together with one copy of the rules approved by him (whether subject to alteration or not) certified as prescribed.
(3) Any of the amounts specified in paragraph (c) of subsection (1) of this section may in relation to aparticular Building Society be reduced by the Governor in Council by Order in Council but in no event shall-
(a) the amount firstly specified be reduced below $1 000000;
(b) the amount secondly specified be reduced below $500 000;
(c) the amount thirdly specified be reduced below $250000;
(d) the amount fourthly specified be reduced below $250 000.
(4) During the period of ten years from the date of registration of a Building Society the Registrar may, in relation to any amount lodged in the funds of the Building Society for the purpose of satisfying the provisions of paragraph (c) of subsection (1) of this section, permit with the consent of the Building Society, the person who lodged such amount (or his assignees or personal representative) to withdraw the shares or, as the case may be, be repaid the loan or deposit representing such amount if he is satisfied-
(a) that the withdrawal or, as the case may be, repayment will not have the effect of reducing the amount required to be lodged in its funds under the said paragraph (c) below the amount applying to the Building Society; and
(b) that the amount referred to in subparagraph (ii) of the said paragraph (c) will not be reduced below the amount applying to the Building Society.
(5) Where the Registrar is satisfied that the Building Society is a Starr-Bowkett Society and that its name does not include the words
" Starr-Bowkett " or " Bowkett ", he shall include in its name the words
" Starr-Bowkett" or at his discretion the word" Bowkett" and shall amend the rules accordingly.
(6) Where the Registrar is satisfied that the Building Society is a Terminating Society and that its name does not include the words
" Mutual Benefit" he shall include in its name the words" Mutual Benefit"
and shall amend the rules accordingly.
6 ss.4A, 4B BiUILDING SOCIETIES ACf 1886-1976
(7) Subsections (5) and (6) of this section both apply to a Building Society which the Registrar is satisfied is a Starr-Bowkett Society and a Terminating Society.
Inserted by Actof1968,No. 18, s. 3(as from 8 April 1968); as amended by Act of 1976, No. 28, s. 6.
4. Names of Building Societies. (1) Except with the consent of the Crown Law Officer, a Building Society shall not be registered by a name that, in the opinion of the Registrar is undesirable or is a name, or a name of a kind, that the Crown Law Officer has directed the Registrar not to accept for registration.
(2) The Crown Law Officer shall cause a direction given by him under subsection (1) of this section to be published in the Gazette.
Substituted by Act of 19'68, No. 18, s. 4.
4A.Change of Name. (1) A Registered Society maybyspecial resolution and with the approval of the Registrar change its name to a name by which the Registered Society could be registered without contravention of subsection (1) of section four of this Act.
(2) If the name of a Registered Society~ is (whether through inadvertence or otherwise and whether originally or by change of name) a name by which the Registered Society could not be registered without contravention of subsection (1) of section four of this Act the Registered Society may by special resolution change its name to a name by which the Registered Society could be registered without contravention of that subsection and, if the Registrar so directs, shall so change it within six weeks after the date of direction or such longer period as the Registrar allows unless the Crown Law Officer by written notice annuls such direction, and if the Registered Society fails to comply with the direction it shall be guilty of an offence against this Act.
(3) Notice in writing of any change of name, together with the certificate of incorporation, shall be sent to the Registrar within such time after the passing of the special resolution as is prescribed.
(4) The Registrar shall register the change of name and shall at his discretion either note the change on the certificate of incorporation or issue a new certificate of incorporation in the prescribed form and stating the prescribed particulars.
Inserted by Act of 1968, No. 18, s. 4.
4B.When Registrar to change name. (1) Where the Registrar is satisfied that a R~gistered Society is a Starr-Bowkett Society and that its name does not include the words "Starr-Bowkett" or the word "Bowkett"
he shall change its name by inserting therein the words "Starr-Bowkett"
or at his discretion the word " Bowkett ".
(2) Where the Registrar is satisfied that a Registered Society is a Terminating Society and that its name does not include the words" Mutual Benefit" he shall change its namebyinserting therein the words" Mutual Benefit ".
(3) Subsections (1) and (2) of this section both apply to a Registered Society which the Registrar is satisfied is a Starr-Bowkett Society and a Terminating Society.
BUILDING SOCIETIES ACT 1886-1976 s.4c 7
(3A) Where an administrator has been appointed to conduct the affairs of a Registered Society under section 37AD, the Registrar may, on the application of the administrator, if he considers it expedient to do so in the interests of persons who are or may become members of or who have invested or may invest in or who have deposited or may deposit money with the Society, with the approval of the Minister, change its name to a name by which the Society could be registered without contravention of section 4 (1).
(4) Upon the change of a name made by the Registrar pursuant to this section the Registrar shall-
(a) notify the Building Society concerned of the change of name;
and
(b) request the Building Society concerned to surrender the certificate of incorporation to the Registrar.
The Registrar at his discretion shall either note the change in name on the certificate of incorporation or issue a new certificate in the prescribed form.
Insertedby Act of 1968, No. 18, s. 4;las amended byActlof1976, N:o. 28, s. 7.
4C. Effect of change of name. (1) The change of name of a Registered Society pursuant to sections 4A or 4B of this Act shall be advertised as prescribed.
(2) (a) The change of name shall not affect the identity of the society or any rights or obligations of the Registered Society or of any member or other person or render defective any legal proceedings by or against the Registered Society.
(b) Any legal proceedings that might have been continued or commenced by or against the Registered Society by its former name may be continued or commenced by or against it by its new name.
(3) Any reference in any share certificate, mortgage, lien, security, bond, debenture, agreement, contract, deed, or other document, instrument or writing whatsoever to a Registered Society by its former name shall, on and from the date of registration of the change of name be read and construed as a reference to the Registered Society by its new name.
(4) In the case of any estate or interest in land registered in the name of a Registered Society before its change of name, the Registrar of Titles where "The Real Property Acts, 1861 to 1963," apply to such estate or interest or the person or autho.rity charged with registering instruments of title to or dealings with that estate or interest where those Acts do not apply thereto shall without any authority other than this Act have power and authority to make and shall cause to be made and he or it is hereby directed to make or cause to be made any necessary entries or endorsements in the appropriate register book or other record of titles or dealings and to do and execute all such acts, matters and things as may be necessary and proper to give full effect to the change of name of the Registered Society and in particular shall without any payment of fee register any such estate or interest registered in the name of the Registered Society prior to its change of name in the name of the Registered Society after such change of name.
a.5-9 BUfi,DING SOCIETIES Acr 1886-1976
(5) With respect to any registration of change of name directed by subsection (4) of this section, the Registrar of Titles or, as the case may be, the person or authority charged with the registration of instruments of title to or dealings with any estate or interest in land as referred to in such subsection, unless sooner requested to do so by the Registered Society shall not be bound to register the same until the first dealing subsequent to that change of name in respect of the estate or interest in land is lodged, filed or deposited in the Real Property Office or other appropriate office as the case may be together with all other documents requisite for the due registration of that dealing.
Inserted by Act of 1968, No. 18, s. 4.
EXISTING BUILDING SOCIETIES
5. Registration of existing Societies. Compare 37&38 Vic. c.·42, s. 8.
Any existing Society shall be entitled to be registered under this Act, and when so registered its rules shall, so far as the same are not contrary to any express provision of this Act, continue in force until altered or rescinded as hereinafter mentioned, but any of its rules which are contrary to any express provision of this Act shall, after such registration, cease to be of any force or validity save as to any transactions, matters, or things done prior to such registration.
6. Authority to register existing Society. Compare 37 &38 Vic. c. 42, s. 10. No existing Society shall be registered under this Act except by the authority of a general meeting of the Society convened and held in accordance with its rules for the time being and specially called for the purpose, and the Registrar may require a statutory declaration from the secretary and such other evidence (if any) as he may think fit, that such authority was duly given.
7. Mode of registration of existing Society. Compare 37 & 38 Vic.
c. 42, s. 10. Any existing Society entitled to be registered under this Act and desiring to be so registered shall transmit to the Registrar two copies of its rules, purporting to be duly certified under The Friendly Societies Act, 1876, or some Act thereby repealed, and authenticated by the statutory d·eclaration of the secretary and such other evidence (if any) as the Registrar may require; and the Registrar, if satisfied that such rules were duly certified under the said Acts or some or one of them, and that the necessary authority for the registration of the Society under this Act has been given, shall retain and register one copy of such rules, and shall return the other copy to the secretary with a certificate of registration, and thereupon such society shall be deemed to be registered under this Act.
8. Common seal. Upon the registration under this Act of any existing Society, such society shall forthwith, by passing a new rule for the purpose, make provision for the device, custody, and use of the common seal of the Society, which must bear the registered name thereof.
9. Property, etc., to vest on incorporation. All rights of action and other rights, and all estates and interest in real and personal estate whatsoever, including land WIder the provisions of The Real Property Act
BUILDING SOCIETIES ACf 1886-1976 ss.10-12 9 of1861, belonging to or held in trust for any existing Society registered under this Act, shall, on the incorporation of the Society under this Act, vest in the Society without any conveyance, transfer, or assignment whatsoever.
NOTIFICATION OF REGISTRATION OF SOCIETIES
10. Incorporation. First Schedule. Compare 37 & 38 Vic. c. 42, s.9. Upon the registration of a society under this Act the Registrar shall forthwith notify in the Gazette, in the form or to the effect in the First Schedule to this Act, that such Society is registered, and thereupon the then present members of the Society, together with such other .persons as may from time to time become members of the Society, shall be a body corporate by the name contained in its rules, capable forthwith of exercising all the functions of a corporation and having perpetual succession and a common seal. Such notice shall be conclusive evidence that all the requirements of this Act in respect of registration have been complied with.
11. Proof of incorporation. Second Schedule. Compare 37 & 38 Vic. c. 42, s. 20. A certificate in the form or to the effect in the Second Schedule to this Act, under the hand of the Registrar (whose handwriting itshall not be necessary to prove, and who is hereby required to give such certificate to any person applying for the same on payment of ten cents), shall be conclusive evidence that the Society named in such certificate is incorporated under this Act.
Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965.
RULES
12. Rules to contain certain matters. 37 & 38 Vic. c. 42, s. 16. The rules of every Building Society established under this Act shall set forth- (1) Name and place of business. The name of the Society and chief office or place of meeting for the business of the Society;
(2) Issue of shares, etc. The manner in which the stock or funds of the Society is or are to be raised; the terms upon which paid-up shares (if any) are to be issued and dealt with, and whether preferential shares are to be issued, and if so, within what limits (if any); and whether the Society intends to avail itself of the borrowing powers conferred by this Act, and if so, within what limits, not exceeding the limits prescribed by this Act;
(3) Application and investment of funds. The purposes to which the funds of the Society are to be applied, and the manner in which they are to be invested;
(4) Withdrawal of shares and redemption of mortgages. Whether shares mayor may not be withdrawn, and if so, upon what terms, and the terms upon which mortgages may be redeemed;
(5) Rules. The manner of altering and rescinding the rules of the Society and of making additional rules;
10 s.12 BUILD,INIG SOCIETIES ACf 1886-1976
(6) Duties, etc., of officers. The number of directors, the qualification of directors, and the manner of electing, remunerating and removing directors and filling a vacancy in the office of a director, whether directors are to be elected annually or half-yearly, the period for which directors are to hold office, and whether directors are to retire by rotation or otherwise;
(6A) Duties, etc., of board. The powers and duties of the board, the requisite notice of meetings, the quorum for meetings and the procedure at meetings of the board;
(6B) Officers of Society. The manner of appointing, remunerating and removing officers of the Society (other than directors), the powers and duties of such officers;
(6c) Appointment, etc., of auditors. The manner of appointing, remunerating and removing auditors, the powers and duties of auditors;
(7) Meetings. The manner of calling general and special meetings of the members, the quorum necessary to constitute such meetings, and the mode of voting and number of votes to be given by each member at such meetings;
(8) Choses in action. The mode of drawing and signing cheque~,
drafts, bills of exchange, promissory n.otes, and other l1egotiable instruments, for and on behalf of the Society;
(9) Security to be given by officers. The security to be given by any paid officer of the Society having the receipt or charge of allY money belonging to the Society;
(10) Audit. Provision for an annual or more frequel1t audit of the accounts, and inspection by the auditors of the mortgages and other securities belonging to the Society;
(11) Arbitration. Whether disputes between the society and any of its members, or any person claiming by or through any member, or under the rules, shall be settled by reference to arbitration, or how otherwise;
(12) Seal. Provision for the device, custody, and use of the seal of the Society, which shall in all cases bear the registered name thereof;
(13) Custody of securities. Provision for the custody of the mortgage deeds and other securities belonging to the Society;
(14) Fines and forfeitures. The fines and forfeitures to be imposed on members of the Society;
(15) Termination or dissolution. The manner in which the Society, whether terminating or permanent, shall be tertninated or dissolved.
Where there is any inconsistency between a rule of a Registered Society and a provision of this Act, the latter shall prevail and the former shall to the extent of that inconsistency be invalid.
As amended by Act of 1968, No. 18, s. 5.
BUILDING SOCIETIES ACf 1886-1976 ss.13-15 11
13. Forms ofconveyance, etc., may be prescribed. 37& 38 Vic. c. 42, s. 19. A Registered Society may by its rules prescribe the forms ofany conveyance, mortgage, transfer, agreement, bond, security for a deposit or loan, or any other instrument necessary for carrying its purposes into execution.
14. Member and society bound by rules. The rules of a Registered Society shall bind the Registered Society and all members thereof and all persons claiming through them respectively to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were contained in the rules a covenant on the part of each member and his legal representatives to observe all the provisions of the rules, subject to the provisions of this Act.
SubstitutedbyAct of 1968, No. 18, s. 6.
15. Alteration of rules. (1) Subject to this section the rules of a Registered Society shall not be altered unless the alteration has been approved by a special resolution of the Registered Society.
(2) The Registered Society shall within the prescribed time and in the prescribed manner and on payment of the prescribed fee apply to the Registrar to havethe alteration registered.
(3) The Registrarmay- (a) approve the alteration;
(b) approve the alteration subject to s·uch modifications as he thinks fit;
(c) refuse to approve the alteration.
(4) ·Upon approving any alteration (whether subject to modification or not) the Registrar shall register and certify the alteration as prescribed.
Until an alteration is so registered and certified it shall have no effect.
(5) The rules of a Registered Society shall be read subject to any alteration so registered and certified.
(6) For the purposes of this section, alteration of rules includes additions to the rules and addition to or rescission of a rule.
(7) Upon a change in name being registered pursuant to this Act, the Registrar shall alter the rule containing the name of the Registered Society in accordance with such change and the rules of the Registered Society shall to that extent be altered accordingly.
(8) Where the Registrar is satisfied that the rules of a Registered Society registered prior to the eighth day of April, 1968, do not provide for nlatters which he would require to be provided for in rules of Registered Societies registered after such date, he may by notice call UpOll the Registered Society to show cause within the time specified in the notice why the rules of the Registered Society should not be altered in the manner specified by him.
Where the Registered Society fails to show cause within the time specified in the notice or within any extensi0ll: of time which the .Registrar may allow, the Registrar may alter the rules Inthe manner specIfied.' and thereupon the rules of the Registered Society shall be altered accordIngly.
SubstitutedbyAct of 1968, No. 18, s. 7.
12 ss.16-19 BUILDING SOCIETIES ACT 1886-1976
16. Copyofrules, etc., to be supplieeJ. Every Society registered~nder this Act shall furnish to any person requiring the same a complete prInted copy of its rules for the time being in force, with a printed coPy of its certificate of incorporation appended thereto, and shall be entItled to charge therefor a sum not exceeding ten cents.
As amendedbyAct of 1967, No.7, s. 5, Sch.
17. Rules binding on members. 37 & 38 Vic. c. 42, s. 21. The rules of aSociety registered under this Act shall be binding on the several members and officers of the Society, and on all persons claiming through or und~r a member, or under the rules, all of whom shall be deemed and taken to have full notice thereof, and shall not be elltitled to question or impugn the legality or validity thereof.
18. Printed copies of rules evidence. Compare 37 & 38 Vic. c. 42, s. 20. Copies of the rules of any Registered Society printed for the Society and certified by the Secretary or any member of the board, shall in any Court of justice or before any person having, by law or by consent of parties, authority to hear and receive evidence, be prima facie evidence of the contents of such rules as at the date on which they purport to have been registered, whether such rules are in force or have been rescinded or altered, and any printed document purporting to be a copy of such rules, and so printed and certified as aforesaid, shall be deemed to be a true copy of the rules unless the contrary is shown.
Asamended byAct of 1968, No. 18, s. 8.
19. Registrar refusing to register to state reason. If upon an application for the registration of a Society under this Act, or for the registration of any alteratiol1 of or addition to the rules of a Society registered under this Act, the Registrar refuses, or for the space of thirty days after the transmission to him of any such original, altered, or additional, rule or rules, neglects to register the same, the secretary or intended secretary of the Society may, by notice in writing, require the Registrar to set forth in writing under his hand the grounds of such refusal or neglect, and if the Registrar does not, within seven days after service upon him of such notice in writing, set forth such grounds and deliver a copy thereof to such secretary or intended secretary, such secretary or intended secretary may call upon the Registrar, by summons before the Court or a judge thereof, to show cause why he should not furnish such grounds, and the Court or judge may make such order thereon as may seem fit.
Upon such grounds being furnished, such secretary or intended secretary may summon the Registrar to appear before the Court or a judge to substantiate and uphold such grounds of refusal or neglect. And upon the hearing of the summons the Court or judge may make such order thereon as the circumstances of the case may require. And upon any such summons the Court or judge may make such order as to costs as may seem fit.
BUILDING SOCIETIES ACT 1886-1976 ss.20-22B 13 POWERS, RIGHTS, AND PRIVILEGES OF BUILDING SOCIETIES
20. Minors. Unless otherwise provided by the rules, any person who is a minor shall subject to this Act be eligible to be a member of a Registered Society.
A minor who is a member of a Registered Society-
(a) may execute all instruments and give all necessary acquittances (which instruments and acquittances shall be binding and sufficient in law for all purposes);
(b) shall not be eligible to hold office in the Registered Society.
A member of the Registered Society shall not at any time be entitled on any ground relating to his infancy or former infancy to avoid any of his obligations or liabilities as a member of the Registered Society or underany security given by him to the Registered Society.
SubstitutedbyAct of 1967t No. 7, ~. 2.
21. Joint holdersandcorporations. Compare37 & 38 Vic. c. 42, s. 39.
A corporation or joint stock company may, if allowed by its own constitution so to do, hold shares in a Registered Society, and two or more persons may hold such shares jointly.
22. Liability of members. 31&38 Vic. c. 42, s. 14. The liability of a member of a Society registered under this Act in respect of any share upon which 110 advance has been made shall be limited to the amount actually paid or in arrear on such share, and in respect ofanyshare upon which an advance has been made shall be limited to the amount payable thereon under any mortgage or other security, or under the rules of the Society.
22A. Reference to committee in certain societies. Every reference in the rules of a Registered Society registered immediately prior to the passing of The Building Societies Acts Amendment Act of 1968 to a committee of management and to a member of such a committee shall be read as a reference to a board of directors and director respectively.
Inserted by Act of 1968, No. 18, s. 9.
228. Board of directors. (1) The business and operations of a Registered Society shall be controlled by a board of directors subject to and in accordance with this Act and the rules of the Society.
(2) Every director of a Registered Society acting in the business or operations of the Society in accordance with this Act and the rules of the Society or a resolution duly passed by the board of the Society shall be the agent of the Society for all purposes that are within the objects of the Society.
(3) The acts of a director shall be valid notwithstanding any defect that may afterwards be discovered in his appointment as director or his qualification for appointment.
Substituted by Act of 1976, No. 28, s. 8.
14 ss.22c-22F BUILDINGSOCIEUES Acr 18,86-1976
22C. Constitution of board and election of directors. (1) The number of directors of a Registered Society shall be not less than five.
(2) The first directors of a Registered Society shall be elected at the meeting duly constituted for the formation of the Society.
(3) Subject to subsection (2) and to section 37AD, the directors shall be elected at a general meeting ofthe Society or where a casual vacancy in the office of director is to be filled, at a meeting of the directors in either case in accordance with the rules of the Society.
(4) The rules of a Registered Society may provide for the election or appointment-
(a) of not more than two directors as employees where the number of directors is seven or more;
(b) of not more than one directoras an employee in any other case.
Substituted by Act of 1976, No. 28, s. 9.
22D. Meetings of board. Meetingsofthe board shallbeheldso often as may be necessary for properly conducting the business and operations of the Registered Society, but shall be held at least onceinevery two calendar months, and a quorum ofa meeting of the board shall be prescribed by the rules ofthe Registered Society but shall not in any case be less than half the number of directors.
Inserted by Act of 1968, No. 18, s. 9.
22E. Chairman and tenure of directors. (1) Thechairman of theboard shall be electedbythe board in accordance with the rules of the Registered Society, and shall hold office and retire, and may be removed from office, as prescribed by the rules of the Registered Society and by this Act.
(2) The directors shall hold office and retire, and may be removed from office as prescribed by the rules of the Registered Society and by this Act.
Inserted by Act of 1968, No. 18, s. 9; as amended by Act of 1976, No. 28, s. 11.
22F. Removal from office, etc. (1) The office of director shall be vacated in such circumstances, if any, as, are prescribed by the rules of the Registered Society, and in any of the following circumstances:-
(a) if he is made bankrupt or takes advantage of the laws in force forthe time being relating to bankruptcy;
(b) if he is a patient within the meaning of the Mental Health Act 1974;
(c) if he is convicted of any offence under this Act for which the prescribed pecuniary penalty exceeds $500;
(d) if he is convicted in Queensland of an indictable offence or elsewhere than in Queensland inrespect ofan act or omission that if done or made by him in Queensland would have constituted an indictable offence;
(e)if he is convicted summarily of an offence for which he is sentenced to imprisonment (other than in default of payment of a fine);
BUILDING SOCIETIES ACT 1886-1976 s.22F 15
(f) if he is absent without prior leave granted by the Board from three consecutive meetings of the Board of which due notice has been given to him;
(g) if he does not within two months after any charges become due by him to the Society on account of his membership, pay the cllarges;
(h) if he ceases to be a member of the Society;
(i) if by notice in writing to the Board he resigns his office;
(j) if he is removed from office by resolution of a general meeting of the Society;
(k) if he or his associate has a direct or indirect pecuniary interest in allY agreement with the Society otherwise than-
(i) as a member of, and in common with the other members of a body corporate consisting of more than 20 persons;
(ii) as a partner in a body of persons that provides the Society with secretarial or administrative services; or
(iii) as a person who provides the Society with secretarial or administrative services;
(1) if he or his associate receives an advance or makes any purchase from the Society otherwise than in accordance with a special resolution;
(m) if he or his associate is a party to any of the following dealings with the Society other than a dealing made in good faith in the ordinary course of business of the Society and on such conditions and terms as are usual and proper in similar dealings between the Society and its members : -
(i) a loan made to the Society whether by deposit or otherwise;
(ii) a loan made to the Society in which the pecuniary interest ofthe director or his associate consists ofhis having guaranteed or Joined in guaranteeing the repayment of the loan or any part of the loan;
(iii) any other dealing (other than a dealing to which paragraph (1)applies) between the Society and a director or his associate, which under its objects the society may have with its members;
(iv) such other dealings as are prescribed;
(n) if he is, or becomes, an employee, other than pursuant to section22c(4), or he is, or becomes, employed by a director.
(2) For the purposes of paragraph (k) of subsection (1), pecuniary il1terest shall not include-
(a) an interest in any advance made or approved by the Registered Society in the ordinary course of business of the Society;
(b) an interest in any purchase from the Registered Society if made . in accordance with a special resolution;
(c) an interest in any dealing referred to in paragraph (m) if made in good faith, in the ordinary course of business of the Registered Society, and on such conditions and terms as are usual and proper in ~imilar dealings between the Registered Society and its members;
16 s.22F B,UILDING SOCIETIES Acr 1886-1976
(d) an interest in any dealing between the Registered Society and a director or his associate-
(i) who is a solicitor or conveyancer within the meaning of the Queensland Law Society Act 1952-1974and bona fide carries on practice as such if such dealing is in respect of legal work performed by the director or his associate for and on behalf of the Society; or
(ii) who is a registered valuer within tIle meaning of the Valuers Registration Act 1965-1974 and bona fide carries on practice as such if such dealing is in respect of valuation work performed by the director or his associate for and on behalf of the Society.
(3) A vacancy in the office of director shall be filled as soon as practicable at a meeting of the directors in accordance with the rules of the Registered Society.
(4) For the purposes of this section" associate " includes-
(a) a director's spouse and any person with whom he cohabits in a continuing connubial relationship;
(b) a director's partner in any business undertaking and the partner's partner in any business undertaking;
(c) a director's employer and a director's employee;
(d) a partner of a person referred to in paragraph (a) or (c) in any business undertaking and the partner's partner in any business undertaking.
(5) Where a person is, at the same time, a director of a Society and a director of another body corporate the Registrar may, subject to this section, determine that, in his opinion, the activities and operations in which the other body corporate is engaged are or are likely to be such that that person should not be a director of the Society while he is a director of the other body corporate.
(6) The Registrar shall not make a determination under subsection (5) in relation to a director unless the Registrar-
(a) has, by notice in writing duly given to the director informed him that he proposes to consider whether the determination should be made with respect to the body or bodies corporate specified in the notice; and
(b) has given the director an opportunity to be heard why the determination should not be made.
(7) (a) The Registrar shall duly give notice in writing of a determination under subsection (5) to the director to whom it relates.
(b) The director may within 14 days after the giving of the notice make representations to the advisory committee with respect to the determination and the committee shall report thereon to the Minister.
(8) Where a director makes representations under subsection (7), the Minister may-
(a) uphold the deterlnination of the Registrar;
BUILDING SOCIETIES ACT 1886-1976 55.22FA, 220 17 (b) revoke the determination of the Registrar;
(c) where the determination relates to more than one body corporate, uphold or revoke the determination in relation to the body or bodies corporate specified by the Minister and revoke or uphold it in relation to the other or others.
(9) A director given a notice under subsection (7) vacates his office as stIch a director-
(a) if he does not make representations against the determination to which the notice relates, at the expiration of the period
\vithin which he might have made representations; or (b) iflIe makes representations and the Minister-
(i) upholds the determination; or
(ii) upholds the determination in relation to one or more bodies corporate and revokes the determination in relation to another body or other bodies corporate,
at the expiration of the period of seven days that next succeeds the due giving to the director of notice of the determination having been upheld,
unless before the expiration of that period lIe ceases to be a director of the body or bodies corporate to which the determination relates and, where he has made representations, in respect of which the determination was upheld.
(10) A notice to a director pursuant to subsection (6), (7) or (9) shall be given by post addressed to the last address of the director as disclosed in returns furnished to the Registrar p'ursuant to this Act.
Substituted by Act of 1976, No. 28, s. 12; as amended by Act of 1976 (No.2), No. 49, s. 2.
22FA. Director not to vote on certain matters. A director of a Registered Society shall not vote on any question in which he or his associate has any direct or indirect pecuniary interest otherwise than as a member in common with other members of the Society and if he does vote in contravention of this section his vote shall not be counted.
This section does not apply in respect of a dealing specified in paragraph (1) or (m) of section22F(1),which the director or his associate may make without the director's office being thereby vacated.
For the purposes of this section" associate " includes those persons specified in section22F (4).
Inserted byAct of 1976, No. 28, s. 13.
22G. Age limit for directors. (1) Subject to the provisions of tilis section110person of or over the age of seventy-two years shall be appointed a director of a Registered Society.
(2) The office of a director of a Registered Society shall become vacant at the conclusion of the annual general meeting commencing next after he attains the age of seventy-two years or if. he has attained the age of seventy-two years before the commencement of The Building Societies Acts Amendment Act of 1968 at the conclusion of the annual general nleeting commencing next after the commencement of The Building Societies Acts Amendment Act of 1968.
90799-B
18 s.22H B,UILDING SOCIETIES ACT 1886-1976
(3) Any act done by a person as director shall be valid notwith- standing that it is afterwards discovered that his appointment had terminated by reason of subsection (2) of this section.
(4) Where the office of a director has become vacant by reason of subsection (2) of this section no provision for the automatic re-appointment of retiring directors in default of another appointment shall apply in relation to that director.
(5) If any such vacancy has not been filled at the meetil1g at which the office became vacant the office may be filled as a casual vacancy.
(6) Notwithstanding anything in this section a person of or over the age of seventy-two years may by a special resolution be appointed or re-appointed as a director of that Registered Society to hold office until the next annual general meeting of the Registered Society or be authorized to continuein office as a director until the next annual general meeting of the Registered Society.
(7) Nothing in this section shall limit or affect the operation of any provision of the rules of a Registered Society preventing any person from being appointed a director or requiring any director to vacate his office at any age less than seventy-two years.
InsertedbyAct of 1968, No. 18, s. 9.
22H. Power to restrain certain persons from managing Registered Societies. (1) Where a person is convicted whether within or without the State-
(a) on indictment ofany offence in connexion with the promotion or management ofa corporation;
(b) of any offence involving fraud or dishonesty PUl1ishabie on conviction with imprisonment for three months or more; or (c) of any offellce under section 22L or 22M of this Act or section 81 of the Co-operative and Other Societies Act 1967-1974 or section 122, 124, 374F or 375 of the COlnpanies Act 1961-1975 or section 32 of the Co-operative Housing Societies Act 1958-1974, or in respect of a conviction without the State, under any provision that corresponds to any section specified in this paragraph,
and that person, within a period of five years after his convictioll Of,
if he is sentenced to imprisonment, after his release from prison, without the leave of the Court is a director of or is in any way whether directly or indirectly concerned or takes part in the lnanagement ofa Registered Society he shall be guilty of an offence against this Act and liable to a penalty of not more than $2 000 or imprisonment foratermnotexceeding aIle year or to both such penalty and imprisonment.
(2) A person intending to apply for the leave of the Court under this section shall give to the Registrar not less than ten days' notice of his intention so to apply.
(3) On the hearing of any application under this section the Registrar may be represented at the hearing of and may oppose the gra.nting of the application.
BUILD1NG SOCIE,TIES ACT 1886-1976 s.22H 19 (4) Unless cause to the contrary is shown, the Court may', on an application by the Registrar and on being satisfied as to thie matters referred to in subsectioll (5), make an order prohibitiJlg a perSOll specified in the order from acting as a director of, or being concerlled inthe management of, a Registered Society during SlICh period not exceeding five years after the making of the order as is specifiedinthe order.
(5) Thematters as to which the Court is to be satisfied before nlaking an order under subsection (4) are-
(a) that the person to whom the application for an order relates was given notice of the application;
(b) that, within the period of seven years before notice of the application was given to the person referred to in para.grapll (a), whether that period commenced before or after the commencement of the Building Societies Act Arnendlnent Act 1976, that person was a director of, or was concerned in the management of, a Registered Society or body corporate to which this section applies; and
(c) that in the case of a Registered Society or body corporate referred to in paragraph (b), the manner in which its affairs had been managed was wholly or partly responsible for its being wound up, ceasing to carryon business, being under official management, being unable to satisfy a levy of execution (other than by reason of a direction under section 26c), being subject to the appointment of an adlninistrator or of a. receiver or manager or enteril1g illto a compromise or scheme of arrangement with its creditors.
(6) A person shall not contravene or fail to cODlply witll an order und,er this section that is applicable to him.
Penalty: $1 000 or imprisonment for six months, or both.
(7) Sllbsection (6) does not affect the powers of the Court illrelation to the punishment of contempts of the Court.
(8) In this section, " Registered Society or body corporate to which this section applies" means a Registered Society or corporation-
(a) that has been wound up, or is in the course of being WOUl1d
IIp, because of inability to pay all its debts in full without assistance from the Contingency Fund;
(b) that has suspended or ceased to carryon business because it was unable to pay all its debts in full as at the date of suspension or cessation, as the case may be;
(c) that has been, or is, under official managemel1t;
(d) in respect of which a levy of execution was not satisfied (other than by reason of a direction under section 26c);
(e) in respect of which au. administrator has been appointedp~rsuant to this Act because It was unable to pay all Its debts
In
full without the assistance of the Contingency Fund;20 ss·.22I-22L BUILDING SOCIETIES ACT 1886-1976
(f) in respect of the property of which a receiver or manager has been appointed whether by the Court or pursuant to the powers containedin aninstrument; or
(g) that has entered into acompromise or scheme of arrallgement with its creditors.
Inserted by Act of 1968, No. 18, s. 9; as amended byAct of 1976, No. 28, SSe 14, 47 Sch.
221. Acting as director after office vacated. Any person who knowingly continues to exercise the powers of a director of a Registered Society after his office as director has been vacated and any director of a Registered Society who knowingly permits or suffers any such person to exercise the powers ofadirector shall be guilty of an offence against this Act and liable to a penalty of not more than $1 000 and, in addition, to a penalty of not more thal1 $50 for every day during which the offence is continued.
Inserted by Act of 1968, No. 18, s.9; as amended by Act of 1976, No. 28, s. 47 Sch.
22J. Director's fees. A director may be paid such fees as are fixed by a general meeting of the Registered Society.
Inserted by Act of 1968, No. 18, s. 9.
22K. (1) Secretary and other officers. Secretary. A Registered Society shall appoint a secretary who shall be a natural person and who ordinarily resides in the State.
(2) Anything reqllired or authorized to be done by or in relation to the secretary may, if the office is vacant or for any other reason the secretary is not capable of acting, be done by or in relation to any assistant or deputy secretary or, if there is no assistant or depIlty secretary capable of actiJlg, by or in relation to any officer of tIle Registered Society authorized. generally or specially in that behalf by the directors.
(3) A provision in this Act or in the rules requiring or authorizing a thillgto be done by or in relation to a director and the secretary shall not be satisfied by its being done by or in relation to the same person acting both as director and as, or in place of, the secretary.
(4) Other officers. A Registered Society may appoint such other officers and employees as it considers necessary for the effectual carrying on of its business.
Inserted by Act of 1968, No. 18, s. 9.
22L. As to the duty and liability of officers. (1) A director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office.
(2) All officer of a Registered Society shall not make use of any informatioJl acquired by virtue of his positioll as all officer to gain directly or indirectly an improper advantage for himself or to cause detriment to the Registered Society.
(3) An officer who commits a breach of any of the provisions of this section shall be-
(a) liable to the Registered Society for any profit made by him or for any damage suffered by the Registered Society as a resIllt of the breach ofanyof those provisions; and
BUILDING SOCIETIES ACT 1886-1976 s.22M 21 (b) guilty of an offence against this Act and liable to a penalty
not exceeding $5 000.
(4) This sectioll is ill addition to and not in derogation ofany other enactment or rule of law relating to the duty or liability of directors or officers of a Registered Society.
InsertedbyAct of 1968, No. 18, s. 9; as amendedbyAct of 1976, No. 28, s. 47 Sch.
221\1. Prohibition of certain dealings. (a) A director or other officer shall not, unless specifically authorized to do so by a special resolution of the Registered Society-
(i) sell or have an interest in the selling of, any land to or act as agent, o~~ have an interest in the acting as agent, for the sale of any land (whether or not improvements are situated thereon) to a membet of the Registered Society \vho proposes to pay for the same, in whole or in part, out of an advance made by the Registered Society;
(ii) undertake or have an interest in the undertaking of the erection or act as agent, or have an interest in the acting as agent, in respect of the erection of any dwelling house for a member who proposes to pay for the same, in whole or in part, out of an advance made by tIle Registered Society; or
(iii) accept as payment or have an interest in the acceptance of payment in whole or in part of any moneys due to him by a member of the Registered Society the whole or part of any advance made by the Registered Society to such member.
The provisions of this paragraph shall not extend or apply to an advance made to a lnember, who is not an officer, for the purpose of enabling that member to purchase from an officer a dwelling house that has been owned and occupied by the officer for not less than two years imlnediately preceding the date of granting of approval to such advance.
(b) A person shall be deemed to have an interest in the doing of an act, matter or thing specified ill paragraph (a) of this section if such person is at the relevant time-
(i) the director or other member of the governing body of any corporate body;
(ii) the partner in any unincorporate body;
(iii) the manager or a person who assists in the management, administration or governmelIt of the business of any corporate or unincorporate body,
which does the act, matter or tIling in question.
No person who is so deemed shall be thereby convicted of an offence against this section if the court is satisfied that the offence,vas com-mitted without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to all the circumstances.
Inserted byAct of 1968, No. 18, s. 9; as amended byAct of 1976, No. 28, s. 15.
22 ~~,.lZN,23 BUILDING SOCIETIES ACT 1886-1976
22N. Reserve fund. (1) On and from 1 July 1981 or such other date asthe Governor in Council prescribes for t~epurposes of this section by Order in Council every Permanent Society shall, during the whole of each financial year, maintain a reserve fund separate and apart from the reserve account referred to in section 33D amounting to not less than 0·25 per cel1tum or such other percentage as the Governor in Council prescribes by Order in Council of the alnount of the aggregate liabilities ofthe Society as at the beginning of the final1cial year last preceding the financial year during which the reserve fund is required to be maintained.
Such lastmentioned Order in Council may be made to apply in respect of Permanent Soci~ties generally or in respect of one or more Societies alld to apply in respect of financial years generally or in respect ofone or 1110re financial years.
(2) Any amount maintained ina reserve fUlld pursuant to subsection (1)-
(a) shall not be distributed amongst members of the Permanent Society except upon the winding up of the Society; and (b) may be applied to any other purpose to which the capital of
the Permanent Society may properly be applied.
Inserted byAct of 1976 (No.2), No. 49, s. 3.
23. Employment of funds. (1) Subject to this section a Registered Society shall employ its funds for such of the followil1g purposes as are provided for in its rules or by this Act-
(a)for makil1g advances to members of the Society upon security of their shares;
(b) for making advances to its members and, if the Board so resolves-
(i) to its employees;
(ii) to any person who is not a lllember; or (iii) to bodies corporate,
upon the security of freehold or leasehold estate by \vay of mortgage;
(c)for making advallces or for making loans pursuant to section 28A to other Registered Societies; and
(d) generally for carrying out such purposes of mutual advantage as are provided for in the rules.
(2) Notwithstanding anything to the cOlltrary contained in the rules of the society concerned-
(a) advances referred to in paragraph (b) shall be made only on the secLlrity of a first mortgage; and
(b) the enlployment of funds for making advances or for other purposes pursuant to subsection (I) shall, dir.ectly or in~irect!y, be related to the provision of accommodatIon for reSidentIal purposes.
BUILDING SOCIETIES ACT 1886-1976 S.23A 23 (3) The funds available for employment under subsection (1) shall not include-
(a) such resources of the Registered Society within the meaning of subsections (2) and (3) of section 230 or within the meaning of section 28 (2), 28 (4) or 28B (3) as are not less than the prescribed proportion of the total of members' paid up share capital and deposits (whether by members or other persons) held by the Society;
(b) the amount expended for the provision of business premises pursuant to section 25 which in any finallcial year shall not exceed a sum equal to five per centum or such other proportion as may be determined by Order in Council, of the amount, if any, by which the total of members' paid up share capital and deposits (whether by members or other persons) held by the Registered Society at the end of the financial year immediately pr ceding the financial year in question exceeded the amount of such capital and deposits held by the Society at the beginning of such financial year immediately so preceding.
Substituted by Act of 1972, No. 25, s. 2; as amended by Act of 1975, No. 77, s. 3;
Act of 1976, No. 28, s. 16.
23A. Restrictions concerning interest on loans. (1) A Registered Society shall not charge and shall not be entitled to any interest in respect of a loa.n approved by it until some part of the loan has been actually advanced by it to or on account of the borrower for a purpose for which the loan was approved.
(2) The Governor in Council may by Order in Council prescribe a rate per centum as the maximum rate of interest that a Registered Society is entitled to charge on moneys advanced by it and may, in the Order specify the rests at which interest at the prescribed rate shall be calculated.
(3) At any time when a maximum rate of interest is prescribed pursuant to subsection (2)-
(a) a Registered Society shall not charge interest on moneys advanced by it at a rate in excess of the prescribed rate;
(b) save as is otherwise provided by this section, a Registered Society shall not seek, accept, demand or receive, directly or indirectly, from a person to whom moneys are advanced by the Society any commission, fee, bonus or reward for or
ill connexion with the advances if the total amount of any such commission, fee, bonus or reward together with the amount of the interest at the applicable rate paid or payable by the borrower to the Society exceed, or would exceed, the amount of the interest on such advances that would have been paid, or would be payable, by the borrower if such il1terest had been or were calculated at the prescribed rate at the relevant time or times.
(4) It is lawful for a Registered Society to charge and recover from a prospective borro\ver a fee fixed by the Society to cover the actual cost of processing an application by the prospective borrower for an
24 s.23A BUILDING 'SOCIETIES ACT 1886-1976
.advance by the Society of certain moneys, such fee not to exceed three- quarters of one per centum of the amount of the advance applied for and in addition to charge and recover from the borrower costs, fees and charges-
(a) paid or payable by the Society in respect of the preparation by a solicitor or conveyancer of documents properly evidencing or securing the contract for the advance;
(b) assessed and paid or assessed and payable (wllichever is the less) by the Society in respect of stamp duties or registration fees payable ullder any Act in respect of the advance or in respect of documents relating (whether wholly or in part) thereto and in the latter case, attributable to the advance in question;
(c) paid by the Society in respect of a valuation obtained ill connexion with the advance in question,
but it shall not be lawful for a Registered Society, directly or illdirectly, to seek, accept, demand or receive any commission, fee, bonus or reward for or in connexion with any payment as specified in paragraph (a), (b) or (c) from the person to whom such a payment has been made or is payable.
(5) Where the rules of a Registered Society or the provisions of a mortgage given to a Society by a borrower provide that the Society may charge an additional fee in the event of the early discharge of the borrower's mortgage debt then, notwithstanding such rules or provisions, it is lawful for the Society to charge and recover from the borrower such additional fee subject to the following conditions:-
(a) the additional fee does not exceed 0·5 per centum of tIle portion of the mortgage d.ebt discharged before it falls due under the mortgage; and
(b) the mortgage debt is discharged withill three years of the date of the approval on behalf of the Society of the advallce to tIle borrower,
and not otherwise and a Society that charges or recovers from a borrower such an additional fee when it is not lawful for it to do so is guilty of an offence against this Act.
(6) A Registered Society that contravenes a provision of subsection (1) or (3) or is guilty of the offence defined in subsection (5) is liable to a penalty of $2 000 and in addition to imposing a penalty on the Society the Court by whicll the Society is convicted may order the Society to repay to the person from whom it has received moneys in contravelltion of that subsection the amount of such moneys.
A provision of any dOCllment that purports to exclude or modify the operation of this section or any part of it is void.
(7) A person who has paid to or on account of a Registered Society moneys the receipt of which by the Society constitutes or WOllldconstitute a contravention of subsection (1) or (3) or renders the Society guilty of the offence defuled in subsection (5) may recover from the Society by action
BUILDING SOCIETIES ACT 1886-1976 s.23A 25
in a court of competent jurisdiction, as a debt due and owing to such person by the Society, the moneys so paid together with illterest thereon at such rate as the Court may order.
(8) (a) A Registered Society tIlat has made, prior to the comlnencement of the Building Societies Act Amendnlent Act 1974, any advance in respect of which it is for any reason precluded from charging a rate of interest up to the prescribed rate or, if there be 110 prescribed rate, up to the maximum rate of interest that the. Society is lawfully entitled to charge in respect of an advance if it were made on the date when the approval is sought under this subsection may seek the approval of the Governor in Council to charge in respect of that advance a rate of interest higher than the rate charged at the time approval is sought but not exceeding-
(i) the prescribed rate as determined from tinle to tinle; or (ii) if there be no prescribed rate, the maximum rate of interest
that the Society is lawfully entitled, from time to time, to charge in respect of advances made by the Society subsequellt to the commencement of the said Act.
(b) The approval sought may be to the charging of-
(i) the prescribed rate as determined from time to time; or (ii) the maximum rate of interest that the Society is lawfully entitled,
from time to time, to charge in respect of advances made by the Society subsequent to the commencement of the Building Societies Act An1endment Act 1974,
without the specification of a particular rate of interest.
(c) Upon his approval being sougl1t by a Registered Society under this subsection the Governor in Council maybyOrder in Council approve that on and from the date specified in the Order in that behalf the Society may charge in respect of an advance in respect of which his approval is sought-
(i)the rate of interest specified ill the Society's application for his approval made in accordance with this subsection; or
(ii) if a particular rate of interest is not specified in the Society's application, the prescribed rate or the maximum rate of interest as referred to in paragraph (b) of this subsection according to the terms of the Society's application for his approval.
(d) The date specified in the Order in Council may be a date earlier than the date of publication of the Order in the Gazett~ but shall 110t be a date earlier than 15 June 1974.
(e) The Registered Society may, pursuant to the approval of the Governor in Council, in respect of advances the subject of stIch approval, charge the rate of interest approved by the Governor in Council on al1d from the date specified for that purpose in the Order in Council, and, in respect of any period prior to the date of publication of the Order in the Gazette, including any period prior to the commencement of the Building Societies Act Amendment Act 1974, this provision operates retrospectively accordingly, and any persons by whom such advances
