QueenslandChallengeBank(TransferofUndertaking)Act1996Reprinted as in force on 31 October
1996Reprint No. 1*This
reprint is prepared bythe Office of the Queensland
Parliamentary CounselWarning—This reprint is not an
authorised copyNOT FURTHER AMENDEDLAST REPRINT
BEFORE REPEALSee 2011 Act No. 8 s 121*Minor
differences in presentation between this reprint and another
reprint with the same number are dueto the conversion
to new styles. The content has not changed.
Information about this reprintThis
Act is reprinted as at 31 October 1996.Minor editorial
changes allowed under the provisions of the Reprints Act 1992
mentionedin the following list have been made
to—•use standard punctuation consistent
with current drafting practice (s 27)•use
aspects of format and printing style consistent with current
drafting practice(s 35)•omit
the enacting words (s 42A).This page is specific to this
reprint.A table of reprints is included in the
endnotes.Also see endnotes for information about when
provisions commenced.Dates shown on reprintsReprints dated at last amendmentAll
reprints produced on or after 1 July 2002, hardcopy and
electronic, are dated as at the last date of amendment. Previously
reprints weredated as at the date of publication. If a
hard copy reprint is dated earlier than an electronicversion published before 1 July 2002, it
means the legislation was not further amendedand the reprint
date is the commencement of the last amendment.If the date of a
hard copy reprint is the same as the date shown for an electronic
versionpreviously published, it merely means that
the electronic version was published before thehard copy version.
Also, any revised edition of the previously published electronic
versionwill have the same date as that
version.Replacement reprint dateIf the date of a
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other.
3Challenge Bank (Transfer of
Undertaking) Act 1996Challenge Bank (Transfer of
Undertaking) Act1996[reprinted as in force on 31 October
1996]AnActtoprovideforthetransferoftheundertakingofChallenge Bank Limited to Westpac Banking
Corporation, andfor related purposesPreamble1Challenge Bank Limited ACN 009 230 433
(Challenge) is acompanyincorporatedinWesternAustralia,acompanywithin the
meaning of the Corporations Law and a companylimited by
shares.2Westpac Banking Corporation ARBN 007
457 141 (Westpac)isabodycorporateestablishedbyanActofNewSouthWales.3WestpaccarriesonthebusinessofbankingthroughoutAustralia and elsewhere in the world, while
Challenge carrieson the business of banking principally in
Western Australiaand Victoria but also has assets and
liabilities in other Statesand in Territories.4On 21 December 1995 Westpac became the
beneficial ownerof the whole of the issued share capital of
Challenge and sincethenChallengehasbeenawhollyownedsubsidiaryofWestpac.5Under
the conditions imposed on the authority of Challenge tocarry
on banking business in Australia, Challenge is requiredto
surrender the authority.6It is necessary
and expedient to transfer the banking businessofChallengetoWestpacinWesternAustraliaand,atthesame
time, to transfer the assets and liabilities of Challenge inother
States and in Territories to Westpac.
s14s3Challenge Bank (Transfer of Undertaking) Act
19967On22November1995theCommonwealthTreasurerconsented under theBanking Act
1959(Cwlth), section 63, tothe amalgamation
of the banking business of Challenge withthat of
Westpac.8It is expedient to enact legislation
to provide for the transfer oftheassetsandliabilitiesofChallengeinQueenslandtoWestpac.Part 1Preliminary1Short
titleThisActmaybecitedastheChallengeBank(TransferofUndertaking) Act 1996.2Commencement(1)This
Act, other than sections 3 and 18, commences at noonEastern Standard Time on a day to be fixed
by proclamation.(2)However if at the time and day
mentioned in subsection (1)thegazettenoticementionedinsection18(4)hasnotbeenpublished, this Act, other than sections 3
and 18, commenceson the day the gazette notice is
published.(3)Sections 3 and 18 commence on
assent.(4)TheActsInterpretationAct1954,section15DA,doesnotapply to this Act.3DefinitionsIn this
Act—assetincludes property
held in a fiduciary capacity.Challengemeans
Challenge Bank Limited ACN 009 230 433.
s35s3Challenge Bank (Transfer of Undertaking) Act
1996Challengecontractsmeansallcontractsandotherinstruments or
undertakings entered into by or made with, oraddressedto,Challenge(whetheraloneorwithanotherperson) and in
force immediately before the commencementtime.chiefexecutiveofficer,inrelationtoWestpac,meansthechief executive officer of Westpac or
a person to whom thechief executive officer’s powers have been
delegated.commencementtimemeansthetimeanddaythisActcommences under
section 2.customer, of a bank,
includes a depositor of the bank.excluded
assetsmeans—(a)a
document required to be kept by Challenge under theCorporations Law or another law; and(b)shares held by Challenge in—(i)CBL Financial Services Ltd (ACN 009
340 390);(ii)CBL Securities Ltd (ACN 009 124
341);(iii)Challase Pty Ltd
(ACN 059 339 641);(iv)Challenge Finance Limited (ACN 000 032
735);(v)Challenge Funds Management Ltd (ACN
009 065990);(vi)Challenge Information Technology Pty Ltd
(ACN007 258 488);(vii)
ChallengeInsuranceServices(Agency)PtyLtd(ACN 009 086 444);(viii) Cold
Storage Construction Pty Ltd (ACN 001 122005);(ix)Herston Pty Ltd (ACN 009 041
650);(x)National Permanent Management Services
Pty Ltd(ACN 009 076 653);(xi)Olsona Ltd (ACN 003 409 756);(xii)
Westman Enterprises Pty Ltd (ACN 008 915 099);and
s36s3Challenge Bank (Transfer of Undertaking) Act
1996(c)units held by Challenge in National
Permanent PropertyTrust, a trust created by a deed dated 21
August 1982betweenHerstonPtyLtd(ACN009041650)andNational Permanent Funds Management
Pty Ltd; and(d)the Challenge logo registered under
theTrade Marks Act1995(Cwlth) as a trade mark in classes 16, 36
and 39undernumbersA486912,A486911andA486910respectively;
and(e)thetrademarkChallengeregisteredundertheTradeMarksAct1995(Cwlth)asatrademarkinclass36under
number A533638; and(f)theotherassetslistedinacertificatemadeforthepurpose of this
paragraph, signed by the chief executiveofficer of
Westpac and received by the Minister after thepassing of this
Act but before the commencement time.liabilitiesincludes duties,
obligations and incidents of everydescription,whetheractual,contingentorprospective,butdoes
not include a duty, obligation or incident relating to anexcluded asset.propertyincludessecurities,rightsandpowersofeverydescription.registerincludes a book of registry and an index
relating toregistration.securityincludesamortgage(whetherlegalorequitable),charge,debenture,billofexchange,promissorynote,guarantee,lien,pledgeorothermeansofsecuringthepayment of a debt, whether present or
future, or the dischargeof an obligation or liability, whether
actual or contingent.State taxmeans a fee, duty
or charge imposed under an Act.transitionperiodmeanstheperiodcommencingatthecommencement time
and ending on the transition period endday.transition period end daymeans
the day notified by gazettenotice under section 16(2).undertaking, of Challenge,
means—(a)all assets of Challenge (except an
excluded asset and arightorpowerofChallengerelatingtoanexcluded
s47s6Challenge Bank (Transfer of Undertaking) Act
1996asset)vestedin,belongingtoorheldbyChallengeimmediately
before the commencement time; and(b)all
liabilities to which Challenge is subject immediatelybefore the commencement time.VictorianActmeanstheWestpacandBankofMelbourne(Challenge Bank)
Act 1996(Vic).WestpacmeansWestpacBankingCorporationARBN007457 141.4Act
binds the CrownThis Act binds the Crown not only in right
of the State but (sofarastheState’slegislativepowerextends)inallitsothercapacities.Part 2Vesting of undertaking ofChallenge in WestpacDivision 1Vesting and its general effect5Vesting of undertakingAtthecommencementtimeChallenge’sundertakingistransferred to and vested in Westpac.6Effect of vesting on Challenge
contracts(1)TotheextentChallengecontractswerebindingonandenforceable by or against Challenge,
the contracts are, on andafter the commencement time, binding
on and enforceable byor against Westpac, as fully and
effectually as if Westpac hadbeen a party to
them or bound by them or entitled to the wholeor a portion of
the benefit of them instead of Challenge.(2)Despitesubsection(1),thissectiondoesnotapplytoaChallenge
contract relating to an excluded asset.
s
78s 10Challenge Bank
(Transfer of Undertaking) Act 1996(3)A
director, secretary or auditor of Challenge is not a
director,secretary or auditor of Westpac merely
because of subsection(1).Division 2Other consequential effect ofvesting7Application of divisionThis division
does not limit division 1.8Relationship
between Challenge’s customers andWestpacTherelationshipbetweenChallengeandeachcustomerofChallengeistakentobe,onandafterthecommencementtime, between
Westpac and the customer, and gives rise to thesame rights and
the same duties (including rights of set–off)as would have
existed if the relationship, immediately beforethe commencement
time, had been between Westpac and thecustomer.9Instruction etc. by Challenge’s
customerEachauthority,instruction,mandateorordergiventoChallenge by a customer of Challenge
and subsisting on, orgiven after, the commencement time is,
until cancelled, takento have been given to Westpac.10Security held by Challenge’s
customers(1)EachsecurityheldbyChallengeimmediatelybeforethecommencement time as security for the
payment of debts orliabilities (whether present or future,
certain or contingent) ofa person is transferred to
Westpac.(2)The security is to be held by, and be
available to, Westpac assecurityforthepaymentofthedebtsandliabilitiestoWestpac.
s
119s 13Challenge Bank
(Transfer of Undertaking) Act 1996(3)However, the security is not security for
any debt or liabilityofthepersontoWestpacexistingimmediatelybeforethecommencement time.(4)Ifthesecurityextendstofutureadvancesto,ortofutureliabilitiesof,theperson,thesecurityisheldby,andisavailableto,Westpacassecurityforfutureadvancestotheperson by, and
future liabilities of the person to, Westpac.(5)If
there is an agreement between Westpac and the person inrelationtoamattermentionedinsubsection(3),subsection(3) applies
subject to the agreement.11Transferred
security—rights, liabilities and prioritiesWestpac is, in
relation to a security transferred under this Actand
the money secured by the security, entitled to the samerightsandprioritiesandsubjecttothesameliabilitiesasChallengewouldhavebeenentitledandsubjectto,ifthesecurity had
continued to be held by Challenge.12Custody of documents, goods etc. held by
ChallengeThecustodyofalldocuments,goodsorthingsheldbyChallenge as bailee for a customer at
an office or branch oragencyofChallengeistransferredtoWestpacatthecommencementtime,togetherwiththerights,dutiesandliabilities of Challenge under a
contract of bailment relating tothe documents,
goods or things.13Negotiable instruments or
orders(1)Each negotiable instrument or order
for payment of money,expressed to be drawn by or on, or
given to, or accepted orendorsed by Challenge, or payable at a
place of business ofChallenge, has the same effect after the
commencement timeas it would have if it had been drawn by or
on, or given to, oracceptedorendorsedby,Westpac,orpayableatthesameplace of business
of Westpac.(2)Subsection(1)appliestoanegotiableinstrumentorordermentioned in
subsection (1) regardless of when it was drawn,given, accepted
or endorsed.
s
1410s 17Challenge Bank
(Transfer of Undertaking) Act 199614Information about customersInformation held immediately before the
commencement timeby Challenge relating to a customer is
available to and may beused by Westpac on or after the
commencement time.15Security over money on deposit(1)InrelationtoasecurityheldbyWestpacovermoneyondepositwithChallengeimmediatelybeforethecommencement time, Westpac is entitled
to the same rightsand priorities and subject to the same
liabilities as it wouldhave been had the money on deposit
continued to be held byChallenge.(2)In
relation to a security held by Challenge immediately beforethecommencementtimeovermoneyondepositwithWestpac, Westpac is entitled to the same
rights and prioritiesand subjectto the same
liabilities as Challenge would havebeen had the
security continued to be held by Challenge.Division 3Transitional period16Transition period end day to be advised by
Minister(1)The Minister must decide, having
regard to the advice of thechiefexecutiveofficerofWestpac,thedayonwhichtheprocess of transferring the assets and
liabilities of Challengein Queensland to Westpac is
complete.(2)As soon as practicable after the
Minister decides the day theMinister must, by
gazette notice, advise the day.(3)The
Minister must give Westpac a copy of the notice.17Business nameChallenge Bank
LimitedDuring the transition period Westpac may
carry on businessunderthebusinessnameChallengeBankLimitedasifthatname were
registered under theBusiness Names Act 1962as
abusiness name of Westpac.
s
1811s 19Challenge Bank
(Transfer of Undertaking) Act 1996Part 3General18Exemption from State taxes(1)State tax is not payable as a result
of or in connection with thetransfer of the
assets and liabilities of Challenge to Westpacunder this
Act.(2)No person has an obligation under an
Act imposing a Statetax—(a)tolodgeastatementorreturnrelatingtoamattermentioned in subsection (1); or(b)toincludeinastatementorreturnarecordorinformation relating to the matter.(3)This section applies only if the
amount fixed by the GovernorinCouncil,ontheadviceoftheMinister,ispaidtotheconsolidated fund by Westpac.(4)AssoonaspracticableaftertheMinisterissatisfiedtheamount fixed under subsection (3) has been
paid, the Ministermust, by gazette notice, advise that the
amount has been paid.19Registering
authorities to note transfers(1)The
registrar of titles or other person required or authorised
bylawtoregisterorrecordtransactionsaffectingassetsorliabilities must, on application by Westpac,
register or recordintheappropriatewaythetransferofanassetorliabilityunder this Act to
Westpac.(2)Atransaction,relatedtoanassetorliabilitytransferredtoWestpac, entered into by Westpac in
Challenge’s name or thename of a predecessor in title to
Challenge, if effected by aninstrument
otherwise in registrable form, must be registeredeven
though Westpac has not been registered as proprietor ofthe
asset or liability.(3)Ifanassetorliability(otherthananexcludedasset)isregistered in the name of Challenge, the
registrar of titles orotherregisteringauthoritymayregisteradealingforatransactionabouttheassetorliabilitywithoutbeing
s
2012s 21Challenge Bank
(Transfer of Undertaking) Act 1996concernedtoenquirewhetheritis,orisnot,anassetorliability transferred under this Act.20Excluded assets transactions(1)A person dealing with Westpac or
Challenge is not obliged toenquire whether property, the subject
of a transaction, is anexcluded asset.(2)If a
transaction is entered into by Westpac with a person, inrelation to an excluded asset, it is to be
taken, in favour of theperson, that Westpac has full power
and authority to enter intothe transaction as if the excluded
asset had vested in Westpacunder this Act.(3)This
section does not—(a)affect the liability of Westpac to
Challenge for anythingdone, or purporting to be done, by
Westpac in relation toan excluded asset; or(b)validate a transaction if the party
dealing with Westpacor Challenge has actual, implied or
constructive noticethat the property is an excluded
asset.21Service of documents on Westpac and
Challenge(1)Service of a document on Westpac or
Challenge is taken to beservice on both.
s
2213s 22Challenge Bank
(Transfer of Undertaking) Act 1996(2)Subsection(1)ceasestoapplyifChallengeceasestobearelated body corporate of Westpac within the
meaning of theCorporations Law, section 9.122Legal
proceedings(1)This section applies to—(a)any action, arbitration or proceeding
or cause of action,arbitration or proceeding which is at the
commencementtimependingorexistingby,against,orinfavourofChallenge; and(b)a
cause of action, arbitration or proceeding by, against,or in
favour of Challenge, which arises—(i)afterthecommencementtimeinrespectofacontractmadebyChallengebeforethecommencement time; or(ii)in respect of anything done or omitted
to be doneby Challenge before the commencement
time.(2)Despitesubsection(1),thissectiondoesnotapplytoanaction,arbitrationorproceedingortoacauseofactionrelating to an
excluded asset.(3)An action, arbitration or proceeding
and any cause of action,arbitration or proceeding mentioned in
subsection (1)—(a)is not abated or discontinued or in
any way prejudiciallyaffected by this Act; and1Corporations Law, section 9—related body corporate, in relation to
a body corporate, means a body corporate thatis related to the
first-mentioned body by virtue of section 50.Corporations Law,
section 50—RelatedbodiescorporateWhere a body
corporate is:(a)a holding company of another body
corporate;(b)a subsidiary of another body
corporate; or(c)a subsidiary of a holding company of
another body corporate;the first-mentioned body and the other
body are related to each other.
s
2314s 24Challenge Bank
(Transfer of Undertaking) Act 1996(b)may,
without further act, deed or instrument other thananyappropriateamendmentoftherecordsoftherelevant court or
tribunal, be prosecuted and continuedand enforced by
or against Westpac, in its own name, asand when it might
have been prosecuted, continued andenforcedbyoragainstChallengeifthisActhadnotbeen enacted.(4)However,thecourt,tribunalorotherpersonmakingorenteringajudgment,orderorawardforthepaymentofanamount of money, whether ascertained
or to be ascertained,againstWestpacmay,attherequestofanypartyinwhosefavour the
judgment, order or award is being made or entered,makeorenterthejudgment,orderorawardagainstbothChallenge and Westpac.(5)Ajudgment,orderorawardmadeorenteredagainstbothChallenge and Westpac may be enforced
against both.23Amendment of document if Westpac
erroneously made aparty(1)A
party to an action, arbitration or proceeding relating to anexcluded asset is entitled at any stage to
seek leave to amendany writ, pleading or other document filed
by the party in theaction, arbitration or proceeding by
substituting for the nameof Westpac the name of Challenge as
party.(2)No order is to be made against a party
so amending to pay toWestpacorChallengeanycostsincurredasaresultoftheamendment.(3)The action, arbitration or proceeding
is to be continued as ifChallenge had originally been made a
party to it.24Effect of things done or allowed under
this Act(1)Nothing done or allowed under this
Act—(a)constitutes a breach of, or default
under, an Act or otherlaw; or(b)constitutesabreachof,ordefaultunder,acontract,understanding or
undertaking; or
s
2515s 26Challenge Bank
(Transfer of Undertaking) Act 1996(c)constitutesabreachofadutyofconfidence(whetherarising by contract, in equity, by custom,
or in anotherway); or(d)constitutes a civil or criminal wrong;
or(e)terminatesanagreementorobligation,orfulfilsacondition that allows a person to terminate
an agreementor obligation, or gives rise to another
right or remedy; or(f)releases a surety or other obligee
wholly or in part froman obligation.(2)Without limiting subsection (1), if, apart
from this subsection,the advice or consent of a person
would be necessary to carryout an action authorised by this Act,
the advice or consent istaken to have been given.25Certificates in relation to charges
and the CorporationsLawThe Corporations Law, section
268(1),2is to be taken to havebeen
complied with in respect of all charges of which Westpacbecomes the holder under this Act if there
is lodged with theAustralian Securities Commission a
certificate signed by thechief executive officer of Westpac
stating that under this Actthe undertaking of Challenge has
vested in Westpac.26Certificates evidencing operation of
Act may be issuedThechiefexecutiveofficerofWestpacmay,bysignedcertificate,
certify a matter in relation to the operation or effectof
this Act, including certifying—(a)aspecifiedmatterorthingrelevanttoWestpacisanaspect of the operation or effect of
this Act; or(b)a specified thing was done for a
purpose connected with,or arising out of, the operation or
effect of this Act inrelation to Westpac; or(c)a specified asset of Challenge has or
has not become anasset of Westpac; or2Corporations Law, section 268 (Assignment
and Variation of Charges)
s
2716s 29Challenge Bank
(Transfer of Undertaking) Act 1996(d)a
specified liability of Challenge has or has not becomea
liability of Westpac.27Evidence—books
and documents(1)A book or document which if this Act
had not been enactedwouldhavebeenevidenceaboutamatterfororagainstChallengeis,onandafterthecommencementtime,admissible in evidence about the same matter
for or againstWestpac.(2)Without limiting subsection (1), a book of
account used in theordinarybusinessofChallengeisforthepurposesoftheEvidence Act
1977,sections 83 to 91, taken to be, and to
havebeen,abookofaccountusedintheordinarybusinessofWestpac.(3)In
this section—book of accounthas the same
meaning as in theEvidence Act1977,
section 83.328Certificates as
evidence(1)For all purposes and in all courts,
tribunals and proceedings, acertificate under
this Act is evidence of the matters certified.(2)A
document purporting to be a certificate under this Act is,unless the contrary is established, taken to
be a certificate andto have been properly given.29Application of banking lawsExceptasexpresslyprovidedin,orasanecessaryconsequence of,
this Act, nothing in this Act exempts Westpacfrom the
provisions of any Act relating to companies carryingon
the business of banking.3Evidence Act
1977, section 83—bookofaccountincludesanydocumentusedintheordinarycourseofanyundertaking to record the financial
transactions of the undertaking or to recordanything acquired
or otherwise dealt with by, produced in, held for or on behalf
of,or taken or lost from the undertaking and
any particulars relating to any such thing.
s
3017s 32Challenge Bank
(Transfer of Undertaking) Act 199630Construction of referencesOn
and after the commencement time, if an Act (other thanthisAct)oradocument,whenevermadeorexecutedoraregister
established or kept under an Act contains a referenceexpressorimpliedtoChallenge,thereferenceis,ifthecontext permits,
to be taken to be a reference to Westpac.31Application of Acts Interpretation Act 1954,
s 20AThis Act is an Act to which theActs
Interpretation Act 1954,section 20A,
applies.32Expiry of ActThis Act expires
20 years from when it commences.
18Challenge Bank (Transfer of
Undertaking) Act 1996Endnotes1Index to endnotesPage2Date to which amendments incorporated
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.183Key . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .184Table of reprints
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .195List
of legislation . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .192Date to which amendments
incorporatedThis is the reprint date mentioned in the
Reprints Act 1992, section 5(c). However, noamendments have
commenced operation on or before that day. Future amendments of
theChallenge Bank (Transfer of Undertaking) Act
1996 may be made in accordance with thisreprint under the
Reprints Act 1992, section 49.3KeyKey to abbreviations in list of
legislation and annotationsKeyAIAamdamdtchdefdivexpgazhdginslapnotfdo in
comorigpparaprecpresprevExplanation=Acts
Interpretation Act 1954=amended=amendment=chapter=definition=division=expires/expired=gazette=heading=inserted=lapsed=notified=order
in council=omitted=original=page=paragraph=preceding=present=previousKey(prev)procprovptpubdR[X]RArelocrenumrep(retro)rvsschsdivSIASIRSLsubunnumExplanation=previously=proclamation=provision=part=published=Reprint No.[X]=Reprints Act 1992=relocated=renumbered=repealed=retrospectively=revised edition=section=schedule=subdivision=Statutory Instruments Act 1992=Statutory Instruments Regulation
2002=subordinate legislation=substituted=unnumbered