Co-Operative Housing Societies Act 1958

Version No. 085

Co-operative Housing Societies Act 1958

No. 6226 of 1958

Version incorporating amendments as at 7 September 2007

table of provisions

SectionPage

1

SectionPage

1Short title and commencement

2Repeal Schedule

3Definitions

3AConstruction of references to Commission

Part I—General

4Formation and registration of co-operative housing societies

4ASocieties excluded from Corporations legislation

5Objects of society

6Power of society to raise money on loan

Part II—Incorporation of Societies

Division 1—Registration, &c.

7Liability and membership

8Formation and registration of society

9As to names of societies

10Certificate of incorporation as evidence

Division 2—Mergers and transfers of engagements

11Application for merger or transfer of engagements between societies

12Registrar may register merged society

13Certificate confirming transfer of engagements between
societies

14Registrar may direct a transfer of engagements between
societies

15Society to comply with direction

16Day on which transfer of engagements takes effect

17Effect of merger

18Effect of transfer of engagements

18AReferences to documents

19–23Repealed

Division 3—Members and Funds

24Members of societies

25Capital and shares

26Liability of members

27Cancellation of shares

28Society's charge on shares

29Payment of sum due on unadvanced shares without probate

Division 4—Privileges, powers, and duties

30Society to be a body corporate

31Exemption from fees

32Acquisition of property

33Raising loans

33ASociety may act as trustee or agent

34As to advances by societies

35Contracts by society

36As to name and address of society

37Service of documents on society

38Effect of rules

39Registers and accounts

40Inspection of registers etc.

41Returns

42Charges

43No voting by proxy

44Special resolution

Division 5—Quarterly returns and reports

44AQuarterly returns by society

44BAuditor to submit report

Division 6—Directions of Registrar

44CIntervention by the Registrar

Division 7—Supervision levy

44CAIndustry Supervision Fund

44DSupervision levy

Part III—Rules, Management, &c.

Division 1—Rules

45Model rules

46Rules of a society

47Alteration of rules

Division 2—Management

48Board of directors

49Appointment of director by Treasurer in certain cases

49AAppointment of administrator

50Annual meeting

51Voting by members

52Minutes

53Officers

54Certain dealings by directors prohibited

55Dismissal of director after inquiry in certain cases

56Audit

57Financial year

Division 3—Valuations

58Valuations of property to be made by sworn valuators

Division 4—Winding up, &c.

59Winding up voluntarily or by court

60Liability of members and past members in winding up

61Repealed81

Part IV—Administration

Division 1—Registry

62Employment of Registrar

62ARegistrar's functions

62BDelegation by Registrar

63Documents to be kept in office of registrar

64Payments to be made for giving of information

65Power to registrar to require evidence

66Inspection of books

67Special general meeting or inquiry

68Inquiry by registrar or inspector

69Powers of registrar or inspector upon inquiry

70Public office of Registrar and inspection of documents

70APower of Registrar to reject documents etc.

71Repealed

Division 1A—Examiners

71AAppointment of examiners

71BPowers of examiners

71COffences in relation to examiners

Division 2—Co-operative Housing Societies Advisory Committee

72The Committee

72AFunctions of Committee

Division 3—General

72BSecrecy

PART IVA—Repealed97

Part V—Government Guarantees and Indemnities

Division 1—Guarantees

73Treasurer's guarantees

74Provisions relating to guarantees

75Aggregate liability under guarantees

75AExecution of guarantees and entering into of agreements

Division 2—Indemnities

76Treasurer's indemnity against loss

77Aggregate liability under indemnities

77AEntering into of agreements

Part VI—Miscellaneous

Division 1—Evidence

78Certificates

79Rules

80Registers

81Minutes

82Entries in books

83Saving

Division 2—Offences

84Failure to display name, keep rules, give returns or
information

85Acting as director after office vacated

86Carrying on unlawful business

87Carrying on business with too few members

88Using wrong name

89Improper sealing

90Taking money before registration

91False copies of rules

92False entries

93Imposition and misapplication of moneys

94Improper commissions

95General penalties

96Recovery of fines, penalties

97Civil remedies in case of contravention

Division 3—Regulations

98Regulations

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SCHEDULE—Repeal

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

1

Version No. 085

Co-operative Housing Societies Act 1958

No. 6226 of 1958

Version incorporating amendments as at 7 September 2007

An Act to consolidate the Law relating to the Formation Registration and Management of Co-operative Housing Societies and the Making by the Treasurer of Victoria of Certain Guarantees and Indemnities in connexion with such Societies, and for other purposes.

1

RP-27/8/2007

Co-operative Housing Societies Act 1958
No. 6226 of 1958

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

S. 1
amended by Nos 8206 s. 14(2), 9776 s. 2(a), 10020 s. 3(1), 10254 s. 43(d), 36/1990 s. 19(a).

1Short title and commencement

This Act may be cited as the Co-operative Housing Societies Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2Repeal Schedule

(1)The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.

(2)Except as in this Act expressly or by necessary implication provided—

(a)all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under such Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Act had not been so repealed;

(b)in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any rule regulation report notice requirement order fee application registration alteration of rules amalgamation statement election certificate transfer charge acquisition loan advance mortgage agreement return security valuation recommendation guarantee indemnity proceeding penalty liability or right made issued given paid accrued incurred or acquired or existing or continuing by or under such repealed Act before the commencement of this Act, nor shall such repeal affect the operation or effect of subsection (3) or subsection (4) of section two or of subsection (2) of section four of the Co-operative Housing Societies Act 1949, or of subsection (8) of section eighty-three of the Co-operation Act 1953.

No. 6138 s. 3.

3Definitions

s. 3

(1)In this Act unless inconsistent with the context or subject-matter—

S. 3(1) def. of authorised deposit-taking institution
inserted by No. 11/2001 s. 3(Sch. item 15.1).

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;

board means the board of directors of a society;

S. 3(1) def. of Commission
inserted by No. 48/1992 s. 94(1), repealed by No. 37/1999 s. 58(Sch. 2 Pt 1 item 1(a)).

*****

S. 3(1) def. of co-operative housing society amended by No. 8786 s. 2(a).

co-operative housing society means a society of persons—

(a)which is formed for all or any of the objects referred to in section five of this Act;

s. 3

(b)which has under its rules a share capital divided into equal shares of one or more classes and not being preferential shares; and

(c)which under its rules is to terminate on a specified date or when a specified object is attained or a specified event occurs—

but does not include a Starr-Bowkett society, that is to say, a society in which the order of advances to members is determined either solely or partly by the drawing of lots;

S. 3(1) def. of Council inserted by No. 36/1990 s. 12, repealed by No. 48/1992 s. 104(a).

*****

S. 3(1)
def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 1.1.)

domestic partner of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(a)for fee or reward; or

s. 3

(b)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

officer, in relation to a society, includes director, secretary, or other person empowered under the rules to act or give directions in regard to the business of the society;

Part means Part of this Act;

S. 3(1) def. of preferential shares inserted by No. 8786 s. 2(b).

preferential shares includes any shares or classes of shares in a society (by whatever name they may be described) entitled—

(a)to a fixed rate of dividend;

(b)to any other right to participate in the profits or assets of the society; or

(c)to any other rights whatsoever—

in preference to any other shares or class of shares in that society or to any of the rights attaching thereto or which entitle the holders to any other preference whatsoever in respect of the payment of dividends, interest, rebates or bonuses or upon the winding up or dissolution of the society or otherwise;

prescribed means prescribed by this Act or the regulations or (where the case so requires) by the rules;

S. 3(1) def. of Registrar substituted by Nos 48/1992 s. 94(2), 37/1999 s. 58(Sch. 2 Pt 1 item 1(b)).

Registrar means the Registrar of Co-operative Housing Societies referred to in section 62;

regulations means regulations made under this Act;

s. 3

rules means rules of a society for the time being in force;

society means co-operative housing society;

S. 3(1)
def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 1.1).

spouse of a person means a person to whom the person is married;

S. 3(1) def. of valuator inserted by No. 7575 s. 2, substituted by Nos 8405 s. 7(a), 91/1994 s. 36(2)(a).

valuator means a person who holds the qualifications or experience specified under section 13DA(1A) of the Valuation of Land Act 1960[1].

(2)In this Act—

(a)any reference to land or freehold property shall be deemed to include a reference to a residence area within the meaning of the Land Act 1958;

(b)any reference to the ownership of land or freehold property or to the owner thereof shall be deemed to include a reference to the right to occupy such a residence area or (as the case may be) to the holder of such a right;

(c)any reference to a mortgage of land or freehold property shall be deemed to include a reference to an encumbrance, by way of security, of the right to occupy such a residence area; and

(d)any reference to the registration of a mortgage of land or freehold property shall be deemed to include a reference to the registration, pursuant to regulations made under the said Act, of an encumbrance of the right to occupy such a residence area:

S. 3(2) Proviso amended by No. 29/2006 s. 3(Sch. 1 item 6.1).

Provided that, in the making of a valuation of a residence area for any of the purposes of this Act, regard shall be had—

(i)to the limited nature of the tenure of such residence area as provided in the said Act;

s. 3

(ii)to the restrictions imposed by or under the said Act upon the occupation and user thereof; and

(iii)to the fact that under the said Act the holder of the right to occupy such area may become the owner in fee simple of the land comprised therein only upon compliance with the conditions provided in the said Act including the payment of a purchase price of such land to be determined by the Minister administering Division 11 of Part 1 of the Land Act 1958.

(3)In this Act—

(a)any reference to land or freehold property shall be deemed to include a reference to a licence to occupy land for residence purposes granted pursuant to section one hundred and thirty-eight of the Land Act 1958;

(b)any reference to the ownership of land or freehold property or to the owner thereof shall be deemed to include a reference to the right granted by such a licence or (as the case may be) the holder of such a licence;

s. 3

(c)any reference to a mortgage of land or freehold property shall be deemed to include a reference to a lien, by way of security, on the improvements upon any land in respect of which such a licence is in force; and

(d)any reference to the registration of a mortgage of land or freehold property shall be deemed to include a reference to the registration, pursuant to regulations made under the said Act, of a lien on improvements as referred to in paragraph (c) of this subsection:

S. 3(3) Proviso amended by No. 29/2006 s. 3(Sch. 1 item 6.2).

Provided that in the making of a valuation of such a licence as aforesaid for any of the purposes of this Act, regard shall be had—

(i)to the limited nature of the right granted by such licence as provided in the said Act;

(ii)to any restrictions imposed by or under the said Act upon the occupation and user of the land to which the licence relates; and

(iii)to the fact that under the said Act the holder of the licence may purchase the land to which the licence relates only in accordance with the provisions of the said Act and at a price to be determined by the Minister administering section 138 of the Land Act 1958.

(4)In this Act and in any regulation made thereunder (whether before or after the commencement of this Act) and in the rules of every society (whether registered before or after the said commencement) any reference, however expressed, to the erection of a dwelling-house on any land shall be deemed to include and always to have included a reference to—

s. 3

(a)the constructing forming levelling draining paving flagging macadamizing or otherwise making good of any portion or portions of the streets or roads abutting upon the land upon which the dwelling-house is or will be erected;

(b)the curbing flagging paving or asphalting of any portion or portions of the footways or pathways abutting upon any such land;

(c)the supplying installing and connecting of sewerage fittings and connexions to the dwelling-house;

(d)the provision of drainage for the land (whether or not wholly upon the land);

(e)the completing of the erection of the dwelling-house notwithstanding that the foundations footings framework or other portions thereof had already been constructed or commenced; and

(f)the adding of one or more rooms out-buildings or other permanent improvements to a dwelling-house in respect of which an advance had previously been made by the society in question—

and any reference, however expressed, in this Act or in any rules registered or regulations made thereunder after the commencement of the Co operative Housing Societies Act 1948 to the making of an advance for the purchase of any land on which a dwelling-house is situated shall be deemed to include a reference to the making of an advance or any part of an advance for the carrying out of all or any of the acts matters and things referred to in paragraphs (a) to (f) of this subsection in relation to the land and house purchased.

S. 3(5) inserted by No. 6457 s. 2 (as amended by No. 6489 s. 4(Sch. item 18(b)).

(5)In this Act—

s. 3

S. 3(5)(a) substituted by No. 7551 s. 47, amended by No. 53/1988 s. 45(Sch. 3 item 6) (as amended by No. 47/1989 s. 23(2)).

(a)any reference to the purchase of land on which is situated a dwelling-house shall, without limiting the generality of that expression, include a reference to the purchase of a stratum estate within the meaning of the Transfer of Land Act 1958 or a lot on a registered plan of subdivision within the meaning of the Subdivision Act 1988, being a residential flat (hereinafter called a stratum estate);

S. 3(5)(b) amended by No. 7097 s. 2(a).

(b)any reference to the making of advances upon the security of freehold property shall include a reference to the making of an advance upon the security of a mortgage of a stratum estate.

S. 3(6) inserted by No. 6457 s. 2, repealed by No. 7097 s. 2(b), new s. 3(6) inserted by No. 27/2001 s. 8(Sch. 6 item 1.2).

(6)For the purposes of the definition of domestic partner in subsection (1)—

(a)in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;

(b)a person is not a domestic partner of another person only because they are co-tenants.

S. 3(7) inserted by No. 6457 s. 2, amended by No. 6821 s. 2, repealed by No. 7097 s. 2(b).

*****

S. 3(8) inserted by No. 6457 s. 2, amended by No. 7097 s. 2(c)(i)(ii).

(8)A society may make an advance upon the security of a mortgage on a stratum estate notwithstanding that a charge to the service company takes priority over that mortgage and notwithstanding any provision of this Act or of the rules of the society to the contrary.

S. 3(9) inserted by No. 6457 s. 2, amended by No. 7097 s. 2(d).

(9)In subsection (5) of this section residential flat means a part or parts of a building which part or parts is or are designed and intended for use as a separate dwelling-house for a single family unit and the appurtenance thereto.

S. 3A
inserted by No. 48/1992 s. 94(3), substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 2).

3AConstruction of references to Commission

s. 3A

A reference in this Act or the Regulations or in any instrument made for the purposes of this Act to the Victorian Financial Institutions Commission is to be construed as a reference to the Registrar, unless a contrary intention appears.

______

Part I—General

No. 6138 s. 4.

4Formation and registration of co-operative housing societies

s. 4

(1)No co-operative housing society shall carry on business unless it is formed and registered under this Act.

S. 4(2) amended by Nos 6455 s. 2(Sch. 1 Pt 3(e)), 6839 s. 4(Sch. 1 Pt 3(e)), 9699 s. 23, 48/1992 s. 95(a), repealed by No. 44/2001 s. 3(Sch. item 19.1).

*****

S. 4(3) inserted by No. 9699 s. 22, repealed by No. 44/2001 s. 3(Sch. item 19.1).

*****

S. 4A inserted by No. 44/2001 s. 3(Sch. item 19.2).

4ASocieties excluded from Corporations legislation

The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act in relation to the whole of the Corporations legislation—

(a)a co-operative housing society;

(b)securities of a co-operative housing society.

Note

This section ensures that neither the Corporations Act nor Part 3 of the ASIC Act will apply in relation to a co-operative housing society or securities of a co-operative housing society. Section 5F of the Corporations Act provides that if a State law declares a matter to be an excluded matter in relation to the whole of the Corporations legislation, then that legislation will not apply in relation to that matter in the State concerned. However, other provisions of this Act apply certain provisions of the Corporations legislation to co-operative housing societies as laws of this State.

No. 6138 s. 5.

5Objects of society

s. 5

(1)A co-operative housing society may be formed for all or any of the following objects—

(a)to enable each of its members—

(i)to purchase land and to erect a dwelling-house thereon; or

(ii)to erect a dwelling-house on land already owned by him; or

S. 5(1)(a)(iia) inserted by No. 8978 s. 2(1).

(iia)to erect a dwelling-house on Crown land leased by him for a term of not less than 50 years being Crown land within an area approved by the Governor in Council for the purposes of this Act;

S. 5(1)(a)(iii) substituted by No. 7097 s. 3(a), amended by No. 7332 s. 2(Sch. 1 item 14).

(iii)subject to section thirty-four of this Act to purchase land upon which is situated a dwelling-house; or

S. 5(1)(a)(iiia) inserted by No. 6821 s. 3(b), amended by No. 7332 s. 2(Sch. 1 item 15).

(iiia)to maintain and keep in proper repair his dwelling-house; or

(iv)where the approval of the Governor in Council given after consideration of a report by the registrar is first obtained—to discharge a mortgage held by another society upon any land; or

S. 5(1)(a)(v) amended by No. 7097 s. 3(b).

(v)to discharge a mortgage or any other charge or security over or affecting any land which mortgage charge or security was granted or executed by the member in question in anticipation of the society's making an advance to him and with the approval of the registrar to the making of the advance; and

S. 5(1)(b) amended by No. 8978 s. 2(2).

(b)for all or any of those purposes to make advances to its members upon the security of freehold property or a lease for a term of not less than 50 years of Crown land within an area approved by the Governor in Council for the purposes of this Act.

S. 5(2) amended by No. 7097 s. 3(c).

(2)In this section purchase includes the completion of a purchase under an existing contract of sale and the discharge of a mortgage within the meaning of the Sale of Land Act 1962, given to a vendor or other person pursuant to the provisions of section four of that Act.