State Bank (Corporatisation) Act 1994

This Act may be cited as the State Bank (Corporatisation) Act 1994.

In this Act—

appointed day means a day fixed as the appointed day by proclamation under this section1;

asset means property including property held in a fiduciary capacity;

BSAL means the public company with the name Bank of South Australia Limited formed under the Corporations Law;

CEO of BSAL means the chief executive officer of BSAL (however described) or a delegate of the chief executive officer;

corresponding law means a law of another State or a Territory providing for the transfer of assets and liabilities between—

SBSA or SBSA subsidiaries; and

BSAL;

document includes any disc, tape or other medium in which information is stored;

guarantee includes indemnity;

instrument includes a legislative instrument and a judgment, order or process of a court;

land includes an estate or interest in land;

legal proceedings includes an arbitration and an administrative proceeding;

liability means a present, future or contingent liability (arising either at law or in equity) and includes a duty or non-pecuniary obligation;

property means real or personal property and includes—

a chose in action; and

a present, future or contingent right, privilege, interest or power;

SBSA means the State Bank of South Australia or, according to the context, that body as continued in existence under the name the South Australian Asset Management Corporation;

SBSA subsidiary or subsidiary means—

a company specified in Schedule 1; and

any company classified by proclamation under this section as an SBSA subsidiary;

security means—

a mortgage, charge, lien, or pledge; or

a guarantee; or

any other security for, or instrument relating to, the payment of money or the discharge of any other liability;

transfer period means the period beginning on the commencement of this Act and ending when no further order for the transfer of assets or liabilities may be made under this Act (see section 7(2));

transferred asset means an asset transferred to BSAL (and not re-transferred to SBSA or an SBSA subsidiary) under Part 4 or a corresponding law;

transferred liability means a liability transferred to BSAL (and not re-transferred to SBSA or an SBSA subsidiary) under Part 4 or a corresponding law.

The Governor may, by proclamation—

fix a day as the appointed day for the purposes of this Act; and

classify a company as an SBSA subsidiary for the purposes of this Act; and

vary or revoke a proclamation under this subsection.

Note—

1 The appointed day has been fixed as 1 July 1994 (see Gazette 23.6.1994 p1784).

This Act applies both within and outside the State.

This Act applies outside the State to the full extent of the extra-territorial legislative power of the State.

The Treasurer may—

subscribe capital to BSAL; or

advance loan capital to BSAL; or

transfer non-pecuniary assets of the Crown to BSAL.

Except as otherwise determined by the Treasurer, capital subscriptions and advances are to be paid out of the Consolidated Account (which is appropriated to the necessary extent).

The Treasurer may exercise any of the above powers on conditions the Treasurer considers appropriate, which may, for example, include conditions providing for the issue of shares to the Treasurer.

An instrument to give effect to a transaction under this section is exempt from stamp duty.

BSAL—

is not an instrumentality or agency of the Crown; and

does not have the privileges and immunities of the Crown; and

does not represent the Crown; and

is not a public or government authority.

The Treasurer may, by order in writing, transfer assets or liabilities (or both) of SBSA or an SBSA subsidiary to BSAL.

An order under this section must be made before, or within the period of six months beginning on, the appointed day (but this period may be reduced by proclamation under this section).

If an order is made under this section on or before the appointed day, it takes effect (subject to any contrary provision in the order) on the appointed day.

An order under this section may be varied or revoked by the Treasurer by further order in writing made before the order takes effect.

A transfer of an asset or liability under this section operates by force of this Act and despite the provisions of any other law or instrument.

The transfer of a liability under this section operates to discharge the body corporate from which the liability was transferred from the liability.

The Governor may, by proclamation, reduce the period within which an order under this section must be made.

The Treasurer may, by order in writing, fix the conditions on which assets or liabilities are transferred to BSAL under this Act or a corresponding law.

An order under this section must be made within the transfer period and may be varied or revoked by the Treasurer by further order in writing made within that period.

The conditions of transfer may, for example, do one or more of the following:

where a transferred asset is trust property each beneficiary of which is SBSA or an SBSA subsidiary, provide that the property is transferred to BSAL free of the trust;

assign a value to particular transferred assets, or transferred assets of a particular class;

assign a value to particular transferred liabilities, or transferred liabilities of a particular class;

assign a net value to particular transferred assets and liabilities, or transferred assets and liabilities of particular classes;

impose on the transferee of assets, or assets and liabilities, a liability (in terms set out in the order) to the body from which transfer is made reflecting the value or net value assigned by the Treasurer to the assets, or the assets and liabilities.

A transferred asset is not subject to any statutory trust in favour of the Crown arising under the State Bank of South Australia Act 1983.

If—

the transfer of a transferred liability to BSAL and the consequent discharge from the liability is not recognised under the law of a place outside South Australia; and

the body corporate from which the liability is transferred is required under the law of that place to make a payment in satisfaction of the liability, the body is entitled to be indemnified by BSAL for the payment.

The following transitional provisions apply in relation to transferred assets and liabilities:

if an instrument or other document, or oral agreement, understanding or undertaking, is applicable to a transferred asset or liability, then for the purpose of construing the instrument or other document or oral agreement, understanding or undertaking (so far as it applies to the transferred asset or liability)—

a reference to SBSA or an SBSA subsidiary is to be construed as a reference to BSAL; and

a reference to a branch, office, or agency of SBSA or an SBSA subsidiary is to be construed as a reference to the corresponding branch, office, or agency of BSAL, or a branch, office or agency designated by the CEO of BSAL as the corresponding branch, office or agency; and

a reference to an officer of SBSA or an SBSA subsidiary is to be construed as a reference to the corresponding officer of BSAL or an officer designated by the CEO of BSAL as the corresponding officer; and

the relationship of banker and customer existing between SBSA and a customer in relation to a transferred asset or liability immediately before the transfer took effect continues between BSAL and the customer after the transfer takes effect and gives rise to the same rights (including rights of set-off) and the same liabilities as would have arisen if there had been no transfer; and

an instruction, order, mandate, authority or notice given to SBSA or an SBSA subsidiary before the transfer takes effect is, so far as it is referable to a transferred asset or liability, taken to have been given to BSAL; and

if a security held by SBSA or an SBSA subsidiary is referable to a transferred asset or liability, then, so far as it is referable to the transferred asset or liability—

the security is available to BSAL as security for the discharge of the liabilities to which it relates including, where the security extends to future liabilities, any such liabilities incurred after the transfer; and

BSAL is entitled to the same rights and priorities and subject to the same liabilities in relation to the security as those to which SBSA or the SBSA subsidiary would have been entitled or subject if there had been no transfer; and

BSAL is entitled to possession of all documents to which SBSA or an SBSA subsidiary was entitled immediately before the transfer took effect that are entirely referable to a transferred asset or liability and is entitled to access to, and copies of, all documents that are referable to both a transferred asset or liability and any other asset or liability that is not transferred; and

a negotiable instrument or order for payment drawn by or on, or accepted or endorsed by SBSA, is (if SBSA's liability under the instrument or order is a transferred liability) payable by BSAL in the same way as if it had been drawn by or on, or accepted or endorsed (as the case may be) by BSAL; and

a cheque drawn on an account transferred to BSAL is, although expressed to be drawn on the account formerly at SBSA, taken to have been drawn on the account at BSAL; and

if an account in respect of which a credit or debit card was issued by SBSA or an SBSA subsidiary is transferred, the card is taken to have been issued by BSAL and to be the property of BSAL; and

if a transferred asset consists of rights to the possession or use of property under a lease or other agreement, BSAL may exercise those rights without giving rise to any liability on the part of the body corporate from which the asset was transferred for parting with possession of the property, or permitting the possession or use of the property by another person, contrary to the terms of the lease or agreement; and

BSAL has the same right to ratify a contract or agreement relating to an asset or liability transferred to it from SBSA or an SBSA subsidiary as SBSA or the SBSA subsidiary would have had if there had been no transfer; and

legal proceedings in respect of a transferred asset or liability commenced by or against SBSA or an SBSA subsidiary must (subject to discontinuance) be continued and completed by or against BSAL; and

in legal proceedings relevant to a transferred asset or liability—

BSAL will have the same rights and privileges as SBSA or the SBSA subsidiary would have had if there had been no transfer; and

a document that could have been given in evidence by or against SBSA or an SBSA subsidiary if there had been no transfer may be given in evidence by or against BSAL; and

BSAL may execute an instrument discharging, surrendering, transferring or otherwise dealing with a transferred asset or liability either in its own name or in the name of the body corporate from which the asset or liability was transferred to BSAL.

An instruction, order or mandate given to a bank or other financial institution for payments to be made from an account at the bank or other institution to an account at SBSA or an SBSA subsidiary is, if the account at SBSA or the SBSA subsidiary is transferred to BSAL under this Act or a corresponding law, taken to be an instruction, order or mandate for the payments to be made to the account at BSAL.

The Registrar-General or any other authority required or authorised under a law of the State to register or record transactions affecting assets or liabilities, or documents relating to such transactions—

must, on the application of BSAL, register or record in the appropriate manner the transfer to BSAL of any transferred asset or liability; and

must register an instrument in registrable form, executed by BSAL, relating to property that is a transferred asset even though BSAL is not registered as the proprietor of the property.

If property is registered in the name of SBSA or an SBSA subsidiary, the Registrar-General or other registering authority may register a dealing with the property by the body corporate in whose name the property is registered or by BSAL without being concerned to enquire whether the property is or is not a transferred asset.