Time and effect of compulsory transfer—transfer of business
35 Time and effect of compulsory transfer—transfer of business
This section applies if a compulsory transfer of business determination has been made.
When the certificate of transfer comes into force, the receiving body becomes the successor in law of the transferring body, to the extent of the transfer. In particular:
if the transfer is a total transfer—all the assets and liabilities of the transferring body, wherever those assets and liabilities are located, become (respectively) assets and liabilities of the receiving body without any transfer, conveyance or assignment; and
if the transfer is a partial transfer—all the assets and liabilities of the transferring body that are included in the list referred to in paragraph 33(2)(c), wherever those assets and liabilities are located, become (respectively) assets and liabilities of the receiving body without any transfer conveyance or assignment; and
to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring body apply to the receiving body.
If the certificate includes provisions of a kind referred to in subsection 33(3):
if the provisions specify that particular things are to happen or are taken to be the case—those things are, by force of this section, taken to happen, or to be the case, in accordance with those provisions; and
if the provisions specify a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.
If there is an approved section 30 statement in relation to the transfer, then:
if the statement specifies that particular things are to happen or are taken to be the case—those things are, by force of this section, taken to happen, or to be the case, in accordance with the statement; and
if the statement specifies a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.
Subject to subsections (2) and (3), if:
the transfer is a total transfer; and
immediately before the certificate comes into force, proceedings (including arbitration proceedings) to which the transferring body was a party were pending or existing in any court or tribunal;
the receiving body is, on and after the day when the certificate comes into force, substituted for the transferring body as a party to the proceedings and has the same rights in the proceedings as the transferring body had.
Alternative ways of dealing with substitution of parties (which are available for total or partial transfers) are:
to deal with the matter in the certificate of transfer (see subsection (2)); or
to deal with the matter in an approved section 30 statement (see subsection (3)).
Subject to subsections (2) and (3), if:
the transfer is a total transfer; and
on the day when the certificate comes into force, documentary or other evidence would (disregarding the transfer) have been admissible for or against the interests of the transferring body;
that evidence is admissible, on or at any time after that day, for or against the interests of the receiving body.
Alternative ways of dealing with admissibility of evidence (which are available for total or partial transfers) are:
to deal with the matter in the certificate of transfer (see subsection (2)); or
to deal with the matter in an approved section 30 statement (see subsection (3)).
Subject to subsections (2) and (3), if the transfer is a total transfer, on and after the day when the certificate comes into force, each translated instrument continues to have effect, according to its tenor, as if a reference in the instrument to the transferring body were a reference to the receiving body. For this purpose:
translated instrument means an instrument (including a legislative instrument other than this Act) subsisting immediately before the day when the certificate comes into force:
to which the transferring body is a party; or
that was given to, by or in favour of, the transferring body; or
that refers to the transferring body; or
under which money is, or may become, payable, or other property is, or may become, liable to be transferred, to or by the transferring body.
Alternative ways of dealing with references in instruments (which are available for total or partial transfers) are:
to deal with the matter in the certificate of transfer (see subsection (2)); or
to deal with the matter in an approved section 30 statement (see subsection (3)).
Subject to subsections (2) and (3), on and after the day when the certificate comes into force, a place that, immediately before that day, was a place of business for the transferring body in relation to business that was transferred to the receiving body is taken to be a place of business for the receiving body.
Alternative ways of dealing with places of business are:
to deal with the matter in the certificate of transfer (see subsection (2)); or
to deal with the matter in an approved section 30 statement (see subsection (3)).
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