Bank of New Zealand (Transfer of Undertaking) Act 1997
Bank of New Zealand (Transfer of Undertaking) Act
1997
QueenslandBank of New
Zealand (TransferofUndertaking)Act1997Reprinted as in force on 6 June
1997Reprint 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 6 June 1997.Minor editorial
changes allowed under the provisions of the Reprints Act 1992
mentionedin the following list have been made
to—•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
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means the legislation was not further amendedand the reprint
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3BankofNewZealand(TransferofUndertaking)Act1997Bank of New Zealand (Transfer of
Undertaking)Act 1997[as amended by
all amendments that commenced on or before 6 June 1997]An Act
to provide for the transfer of the undertaking of Bank ofNew
Zealand to National Australia Bank Limited, and for relatedpurposesPreamble—Parliament’s reasons for enacting this Act
are—1BankofNewZealandARBN000000288(BNZ)isacompany
incorporated in New Zealand.2National Australia Bank Limited ACN 004 044
937 (NAB) isacompanyincorporatedinVictoria,acompanywithinthemeaning of the Corporations Law and a
company limited byshares.3NAB
carries on the business of banking throughout Australiaand
elsewhere in the world.4BNZ carries on
the business of banking in Australia under thename BNZ
Australia.5BNZ became a wholly owned subsidiary
of NAB in February1993.6UndertheconditionsimposedbytheReserveBankofAustraliafortheacquisitionofBNZ’sbankingbusinessinAustralia, BNZ is required to surrender its
authority to carryon banking business in Australia.7It is necessary and expedient to
transfer the banking businessof BNZ in
Queensland to NAB.
s14s3BankofNewZealand(TransferofUndertaking)Act1997Part 1Preliminary1Short
titleThis Act may be cited as theBankofNewZealand(TransferofUndertaking)Act1997.2Commencement(1)This
Act, other than sections 3 and 18, commences on a day tobe
fixed by proclamation.(2)However if on the
day mentioned in subsection (1) the gazettenotice mentioned
in section 18(4) has not been published, thisAct, other than
sections 3 and 18, commences on the day thegazette notice is
published.(3)Sections 3 and 18 commence on
assent.(4)TheActsInterpretationAct1954,section15DA,1doesnotapply to this
Act.3DefinitionsIn this
Act—assetincludes property
held in a fiduciary capacity.BNZmeans
Bank of New Zealand ARBN 000 000 288.BNZ
contractsmeans all contracts and other instruments
orundertakings entered into by, or made with,
or addressed to,BNZ(whetheraloneorwithanotherperson)andinforceimmediately
before the commencement of section 6.2BNZemployeemeansapersonemployedbyBNZinQueensland.chiefexecutiveofficermeansthechiefexecutiveofficerofNAB,
or a delegate of the chief executive officer.1ActsInterpretationAct1954, section 15DA (Automatic commencement
of proposedlaw)2Section 6
(Vesting of undertaking)
s45s4BankofNewZealand(TransferofUndertaking)Act1997excluded assetmeans—(a)a document required to be kept by BNZ
under a law; and(b)atrademarkorbusinessnameregisteredinfavourofBNZ.liabilitiesincludes duties,
obligations and incidents of everydescription,whetheractual,contingentorprospective,butdoes
not include a duty, obligation or incident relating to anexcluded asset.NABmeans
National Australia Bank Limited ACN 004 044937.propertymeans property
and assets of every description, andincludes
securities, rights and powers of every description.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.transferredassetmeansanassettransferredtoNABunderthis Act.transferredliabilitymeansaliabilitytransferredtoNABunder this Act.undertaking, of BNZ,
means—(a)allassetsofBNZ(exceptexcludedassets)vestedin,belongingtoorheldbyBNZimmediatelybeforethecommencement of section 6; and(b)allliabilitiesofBNZimmediatelybeforethecommencement of section 6.4Act binds the StateThis
Act binds the State and, as far as the legislative authorityof
the Parliament permits, the Commonwealth and the otherStates.
s56s7BankofNewZealand(TransferofUndertaking)Act19975Territorial
application of Act(1)This Act applies outside Queensland to
the full extent of theextraterritorial legislative power of
Queensland.(2)NothinginthisActappliestoanypartoftheundertaking,bankingbusiness,assetsorliabilitiesofBNZcarriedonorsituated wholly outside
Australia.Part 2Vesting of BNZ’s
undertaking InNABDivision 1Vesting6Vesting of undertakingBNZ’s
undertaking is transferred to and vested in NAB.7Effect of vesting on BNZ
contracts(1)To the extent BNZ contracts were
binding on and enforceablebyoragainstBNZ,thecontractsare,onandafterthecommencement,bindingonandenforceablebyoragainstNAB, as fully and
effectually as if NAB had been a party tothem or bound by
them or entitled to the whole or a portion ofthe benefit of
them instead of BNZ.(2)Subsection (1) does not apply to an
instrument or undertakingrelating to—(a)an
excluded asset; or(b)the employment of a BNZ employee;
or(c)a provident, benefit, superannuation
or retirement fundfor BNZ employees.(3)Adirector,secretaryorauditorofBNZisnotadirector,secretary or
auditor of NAB merely because of subsection (1).
s
87s 11BankofNewZealand(TransferofUndertaking)Act1997Division 2Consequential
effects of vesting8Application of division(1)This division does not limit division
1.(2)Thisdivisionappliesonlyinsofarasitrelatesto,orisreferrable to, a transferred asset or
transferred liability.9Relationship
between BNZ’s customers and NABThe relationship
between BNZ and each customer of BNZ istaken to be, on
and after the commencement, between NABandthecustomer,andgivesrisetothesamerightsandthesame duties (including rights of set
off) as would have existediftherelationship,immediatelybeforethecommencement,had been between
NAB and the customer.10Authorities etc.
by BNZ’s customersEach authority, instruction, mandate or
order given to BNZ byacustomerofBNZandsubsistingon,orgivenafter,thecommencement is, until cancelled,
taken to have been given toNAB.11Securities held by BNZ(1)EachsecurityheldbyBNZimmediatelybeforethecommencementassecurityforthepaymentofdebtsorliabilities (whether present or future,
certain or contingent) ofa person is transferred to NAB.(2)Thesecurityistobeheldby,andbeavailableto,NABassecurity for the
payment of the debts and liabilities to NAB.(3)However, the security is not security for
any debt or liabilityofthepersontoNABexistingimmediatelybeforethecommencement.(4)Ifthesecurityextendstofutureadvancesto,ortofutureliabilitiesof,theperson,thesecurityisheldby,andisavailableto,NABassecurityforfutureadvancestotheperson by, and
future liabilities of the person to, NAB.
s
128s 15BankofNewZealand(TransferofUndertaking)Act1997(5)IfthereisanagreementbetweenNABandthepersoninrelationtoamattermentionedinsubsection(3)or(4),subsection (3) or
(4) applies subject to the agreement.12Transferred securities—rights, liabilities
and prioritiesNAB is, in relation to a security
transferred under this Act andthe money secured
by the security, entitled to the same rightsand priorities
and subject to the same liabilities as BNZ wouldhave
been entitled and subject to, if the security had continuedto be
held by BNZ.13Custody of documents, goods etc. held
by BNZThe custody of all documents, goods or
things held by BNZimmediatelybeforethecommencementasbaileeforacustomeratanofficeorbranchoragencyofBNZistransferredtoNAB,togetherwiththerights,dutiesandliabilities of BNZ under a contract of
bailment relating to thedocuments, goods or things.14Negotiable 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, BNZ, or payable at a
place of business of BNZ,has the same effect after the
commencement as it would haveifithadbeendrawnbyoron,orgivento,oracceptedorendorsed by, NAB, or payable at the same
place of business ofNAB.(2)Subsection(1)appliestoanegotiableinstrumentorordermentioned in
subsection (1) regardless of when it was drawn,given, accepted
or endorsed.15Information about customersInformation held immediately before the
commencement byBNZ relating to a customer is available to
and may be used byNAB on and after the
commencement.
s
169s 18BankofNewZealand(TransferofUndertaking)Act199716Security over
money on deposit(1)In relation to a security held by NAB
over money on depositwithBNZimmediatelybeforethecommencement,NABisentitledtothesamerightsandprioritiesandsubjecttothesame liabilities as it would have been
entitled and subject tohad the money on deposit continued to
be held by BNZ.(2)In relation to a security held by BNZ
immediately before thecommencementovermoneyondepositwithNAB,NABisentitledtothesamerightsandprioritiesandsubjecttothesame liabilities as BNZ would have
been entitled and subjectto had the security continued to be
held by BNZ.Division 3Employees17NAB and BNZ employees(1)A person who is employed by BNZ
immediately before thecommencementistobeengagedinprovidingservicestoNAB and is subject to the direction
and control of the officersof NAB who are responsible for the
control of the business ofNAB in Queensland.(2)Subsection (1) applies subject to any law or
determination ofanindustrialauthorityundertheWorkplaceRelationsAct1997about the
employment of the person.Part 3General18Payment of amount instead of stamp
duty(1)Stamp duty is not payable as a result
of or in connection withthe transfer of the assets and
liabilities of BNZ to NAB underthis Act.(2)NopersonhasanobligationunderanActimposingstampduty—
s
1910s 19BankofNewZealand(TransferofUndertaking)Act1997(a)to lodge a
statement or return relating to a transfer ofassets or
liabilities under this Act; or(b)to
include information about the transfer in a statementor
return.(3)Subsections (1) and (2) apply only if
the amount fixed by theGovernor in Council is paid to the
consolidated fund by NAB.(4)As soon as
practicable after the amount is paid, the Ministermust
notify the fact by gazette notice.19Registering authorities to note
transfers(1)The registrar of titles or other
person required or authorised bylawtoregisterorrecordtransactionsaffectingassetsorliabilities—(a)may(withoutformalapplication)registerorrecordinthe
appropriate way the transfer of an asset or liabilityunder
this Act; and(b)must, on written application by NAB,
register or recordin the appropriate way the transfer of an
asset or liabilityunder this Act.(2)Atransactionrelatedtoatransferredassetortransferredliability entered
into by NAB in BNZ’s name or the name of apredecessorintitletoBNZ,ifeffectedbyaninstrumentotherwise in registrable form, must be
registered even thoughNABhasnotbeenregisteredasproprietoroftheassetorliability.(3)Theregistraroftitlesorotherpersonisnotrequiredtoactundersubsection(1)(b)or(2)unlesstheappropriatefeeorchargerelatingtotheacthasbeenpaidtotheregistrarorperson.(4)Ifanassetorliability(otherthananexcludedasset)isregistered in the name of BNZ, the registrar
of titles or otherregistering authority may register a dealing
for a transactionabout the asset or liability without being
concerned to enquirewhetheritis,orisnot,atransferredassetortransferredliability.
s
2011s 21BankofNewZealand(TransferofUndertaking)Act1997(5)If land, of which
BNZ is taken to be the registered proprietor,isunderthisActvestedinNAB,despiteanythingtothecontrary in an
Act, NAB is to be taken to be the registeredproprietor of the
land for the purposes of theLandTitleAct1994, subject to the same defects in title
as any to which BNZwas subject.20Charges under the Corporations Law(1)The Corporations Law, section
268(1),3is taken to have beencompliedwithinrespectofallchargesofwhichNABbecomes the holder under this Act if there
is lodged with theAustralian Securities Commission a
certificate signed by thechiefexecutiveofficerstatingthattheundertakingofBNZhas vested in NAB under this
Act.(2)A certificate under subsection (1) is
of no effect unless it isaccompaniedbythefeesthatwouldbepayableifthecertificate were a notice under the
Corporations Law, section268(1)(a).21Other
property(1)This section applies if—(a)any property becomes, under this Act,
the property ofNAB; and(b)anypersonorauthorityhas,underanotherAct,responsibilityforkeepingaregisterinrespectofproperty of that kind.3Corporations Law, section 268(1)—Notice of change of chargee(1)Where, after a registrable charge on
property of a company has been created,a person other
than the original chargee becomes the holder of the charge,
theperson who becomes the holder of the charge
shall, within 45 days after he,she or it becomes
the holder of the charge:(a)lodge a notice
stating that he, she or it has become the holder of thecharge; and(b)give
the company a copy of the notice.
s
2212s 25BankofNewZealand(TransferofUndertaking)Act1997(2)A requirement of
the other Act relating to the transfer of thepropertyfromonepersontoanotheristakentohavebeencomplied with if
there is lodged with the person or authority acertificate
signed by the chief executive officer stating that theundertaking of BNZ became vested in NAB
under this Act.22Construction of references(1)Onandafterthecommencement,ifanAct(otherthanthisAct) or a
document, whenever made or signed or a registerestablished or
kept under an Act contains a reference, expressor implied, to
BNZ, the reference is, if the context permits, tobe
taken as a reference to NAB.(2)Subsection (1) applies only in so far as the
Act, document orregister applies to a transferred asset or
transferred liability.23Certificates
evidencing operation of Act may be issuedThe chief
executive officer may, by signed certificate, certify amatter in relation to the operation or
effect of section 20 or 21.24Certificates 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.25Excluded assets transactions(1)A person dealing with NAB or BNZ is
not obliged to enquirewhether property, the subject of a
transaction, is an excludedasset.(2)IfatransactionisenteredintobyNABwithaperson,inrelation to an excluded asset, it is to be
taken, in favour of theperson, that NAB has full power and
authority to enter intothetransactionasiftheexcludedassethadvestedinNABunder this Act.
s
2613s 27BankofNewZealand(TransferofUndertaking)Act1997(3)This section does
not—(a)affect the liability of NAB to BNZ for
anything done, orpurporting to have been done, by NAB in
relation to anexcluded asset; or(b)validate a transaction if the party dealing
with NAB orBNZ has actual, implied or constructive
notice that theproperty is an excluded asset.26Service of documents on NAB and
BNZ(1)Service of a document on NAB or BNZ is
taken to be serviceon both.(2)Subsection (1) ceases to apply if BNZ ceases
to be a relatedbodycorporateofNABwithinthemeaningoftheCorporations Law, section 9.427Proceedings(1)This
section applies to—(a)a proceeding which is at the
commencement pending orexisting by, against, or in favour of,
BNZ; and(b)a proceeding by, against, or in favour
of, BNZ arising—(i)afterthecommencementinrespectofacontractmade by BNZ
before the commencement; or(ii)in respect of
anything done or omitted to be doneby BNZ before the
commencement.4Corporations Law, section 9—related body corporate, in relation to
a body corporate, means a body corporatethat is related
to the first-mentioned body by virtue of section 50.Corporations Law, section 50—50
Related bodies corporateWhere 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
2814s 28BankofNewZealand(TransferofUndertaking)Act1997(2)Despitesubsection(1),thissectiondoesnotapplytoaproceeding relating to—(a)an excluded asset; or(b)the employment of a BNZ employee;
or(c)a provident, benefit, superannuation
or retirement fundrelating to BNZ employees.(3)A proceeding mentioned in subsection
(1)—(a)is not abated or discontinued or in
any way prejudiciallyaffected by this Act; and(b)may, without any further act, deed or
instrument otherthan any appropriate amendment of the
records of therelevant court or tribunal, be prosecuted
and continuedand enforced by or against NAB, in its own
name as andwhenitmighthavebeenprosecuted,continuedandenforcedbyoragainstBNZifthisActhadnotbeenenacted.(4)However,thecourt,tribunalorotherpersonmakingorentering any judgment, order or award for
the payment of anamount of money, whether ascertained or to
be ascertained,against NAB in any legal or arbitral
proceeding to which thissectionappliesmay,attherequestofanypartyinwhosefavour the
judgment, order or award is being made or entered,make
or enter the judgment, order or award against both BNZand
NAB.(5)Ajudgment,orderorawardmadeorenteredagainstbothBNZ and NAB may be enforced against
both.28Amendment of court documents if NAB
erroneouslymade a party(1)A
party to a proceeding relating to an excluded asset or a BNZemployee is entitled at any stage to seek
leave to amend anywrit,pleadingorotherdocumentfiledbythepartyintheproceeding by substituting for the
name of NAB the name ofBNZ as party.
s
2915s 30BankofNewZealand(TransferofUndertaking)Act1997(2)No order is to be
made against a party so amending to pay toNABortoBNZanycostsincurredasaresultoftheamendment.(3)The proceeding is to be continued as
if BNZ had originallybeen made a party to it.29Effect 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(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.30Evidence—books and documents(1)A book or document which if this Act
had not been enactedwould have been evidence about a matter for
or against BNZis,onandafterthecommencement,admissibleinevidenceabout the same
matter for or against NAB.(2)Without limiting
subsection (1), a book of account used in theordinary business
of BNZ is for the purposes of theEvidence
s
3116s 33BankofNewZealand(TransferofUndertaking)Act1997Act1977,
part 5, division 6,5taken to be, and to have been,
abook of account used in the ordinary
business of NAB.(3)This section applies only in so far as
the book or documentrelates to a transferred asset or
transferred liability.(4)In this
section—book of accounthas the same
meaning as in theEvidenceAct1977, section 83.631Application of banking lawsExcepttotheextentthatanexemptionisdirectlycontemplated by,
or is a necessary consequence of this Act,nothing in this
Act exempts NAB from the provisions of anyAct relating to
companies carrying on the business of banking.32Application of Acts Interpretation Act 1954,
s 20AThis Act is an Act to which theActsInterpretationAct1954,section
20A,7applies.33Expiry of ActThis Act expires
20 years from when it commences.5EvidenceAct1997,part5(Proof of documentsandothermatters),division6(Books of account)6EvidenceAct1977, 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.7ActsInterpretationAct1954, section 20A (Repeal does not end
saving, transitionalor validating effect etc.)
17BankofNewZealand(TransferofUndertaking)Act1997Endnotes1Index to endnotesPage2Date to which amendments incorporated
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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. . . . . . . . . . .174Table of reprints
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. . . . . . . . . . . . . . . . . .185List
of legislation . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .182Date 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 theBank of New Zealand (Transfer of Undertaking)
Act 1997 may be made in accordancewith this reprint
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