Landscape South Australia (Water Register) Regulations 2020

This regulation applies if—

a registered security interest secures the payment of a debt; and

the holder of an interest in the water licence or water access entitlement that is subject to the security interest is in default in relation to that payment (the defaulter); and

a person who is the holder of the security interest (the claimant) determines to initiate action under Schedule 4 clause 13 of the Act to enforce the registered security interest.

In a case where this regulation applies, the claimant must first serve a notice of the proposed enforcement action on the following persons:

the defaulter;

any other person who is the holder of an interest in the water licence and, if the security interest relates to a water access entitlement, of an interest in the water access entitlement, and who is registered under the Act;

any other person who is the holder of a registered security interest in respect of the water licence or, if the security interest relates to a water access entitlement, in respect of the water access entitlement (whether or not having greater priority);

any person who is the holder of a caveat registered in relation to the water licence and, if the security interest relates to a water access entitlement, of a caveat registered in relation to the water access entitlement;

the Minister.

A notice under subregulation (2)—

must be in a form determined or approved by the Minister for the purposes of this regulation; and

must be served in accordance with section 222 of the Act.

If the defaulter does not rectify the default within 30 days of service of a notice under subregulation (3) (or within such longer period as the claimant may allow), the claimant may proceed to offer the relevant interest in the water licence (in the case of a security interest registered in respect of a licence) or the water access entitlement (in the case of a security interest registered in respect of a water access entitlement) for sale.

However, before acting under subregulation (4), the claimant must serve a notice of their proposed course of action under that subregulation in accordance with section 222 of the Act.

After taking the steps envisaged by subregulations (4) and (5), the claimant may apply to the Minister—

in the case of a sale—for the transfer of the interest in the water licence or water access entitlement (or part of the water access entitlement) to the purchaser; or

in the event that the claimant has been unable to effect a sale within a reasonable time for a reasonable price—for the transfer of the interest in the water licence or water access entitlement (or part of the water access entitlement) to the claimant.

An application under subregulation (6) must be made in accordance with section 125 of the Act (and the provisions of that section relating to the payment of an application fee, and the grounds on which the Minister may decide to grant or refuse approval for the transfer of a licence or water access entitlement (or part of a water access entitlement), will apply).

However, it is declared that the requirement to obtain the consent of a person recorded on the register as having an interest in a water licence under section 125(10) of the Act will not apply.

Any purchase money obtained by the exercise of a power of sale under this regulation will be applied as follows:

firstly—in discharging any liability for any outstanding levy, fee or charges payable under the Act in relation to the water licence or water access entitlement;

secondly—in paying the costs of any sale and any other costs incurred by the claimant in proceeding under this regulation;

thirdly—in discharging any liabilities secured by any registered security interests, or unregistered security interests protected by a registered caveat under Schedule 4 clause 9(4)(a) of the Act, in order of their priority;

fourthly—in payment to the defaulter.

On the transfer of an interest in a water licence or water access entitlement (or part of the water access entitlement) under this regulation, all security interests and caveats registered in respect of that interest or water access entitlement (or part of the water access entitlement), as the case may be, are to be discharged by the Minister.

The transfer of an interest in a water licence or water access entitlement (or part of the water access entitlement) under this regulation does not affect—

any condition, requirement or other obligation applying in relation to the relevant water licence (unless the Minister varies a condition under section 125 of the Act); or

any other action that the Minister may take in relation to a transfer, or proposed transfer, of a water licence or water access entitlement (or part of the water access entitlement); or

the operation or affect of a water allocation plan as it relates to the relevant water licence or any water access entitlement (or part of a water access entitlement).

A person who is entitled to receive a notice under subregulation (2) may apply to the ERD Court for an order—

that a sale should not proceed under subregulation (4); or

that a transfer should not proceed under subregulation (6); or

that compensation should be paid to the person on the ground that the claimant did not take reasonable steps to secure the highest possible amount by way of a power of sale under this regulation.

An application to the ERD Court under subregulation (12) must be made—

in the case of an application under subregulation (12)(a)—within 21 days after a notice is given under subregulation (2); or

in the case of an application under subregulation (12)(b)—within 14 days after an application is made to the Minister under subregulation (6); or

in the case of an application under subregulation (12)(c)—within 6 months after an application is made to the Minister under subregulation (6).

The ERD Court may—

on an application under subregulation (12)(a)—order that any action under subregulation (4) not proceed if the court is satisfied that there has been no default under the terms of the security interest, or that the default has been rectified; and

on an application under subregulation (12)(b)—order that a transfer of a water licence not proceed if the court is satisfied that there has been a failure to comply with a relevant regulation or provision of the Act; and

in any case—

order that a claimant pay compensation for any loss or damage suffered because the claimant acted to enforce the security interest without reasonable cause, failed to comply with a requirement under these regulations or a provision of the Act, or failed to take reasonable steps to secure the highest possible amount by way of a power of sale under this regulation;

make any consequential or ancillary order or direction, or impose any condition, that the court considers necessary or expedient.