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.
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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.
The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.
Except as in this Act expressly or by necessary implication provided—
all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under such Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Act had not been so repealed;
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liability or right made issued given paid accrued incurred or acquired or existing or continuing by or under such repealed Act before the commencement of this Act, nor shall such repeal affect the operation or effect of subsection (3) or subsection (4) of section two or of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.
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 of Commission inserted by No. 48/1992 s. 94(1), repealed by No. 37/1999 s. 58(Sch. 2 Pt 1 item 1(a)).
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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—
which is formed for all or any of the objects referred to in section five of this Act;
which has under its rules a share capital divided into equal shares of one or more classes and not being preferential shares; and
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).
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S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 1.1.), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 10.1).
domestic partner of a person means—
a person who is in a registered relationship with the person; or
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—
for fee or reward; or
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 police officer inserted by No. 37/2014 s. 10(Sch. item 20.1).
police officer has the same meaning as in the Victoria Police Act 2013;
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—
to a fixed rate of dividend;
to any other right to participate in the profits or assets of the society; or
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;
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), repealed by No. 67/2017 s. 75(2).
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S. 3(1) def. of valuer inserted by No. 67/2017 s. 75(1).
valuer means a person who holds the qualifications or experience specified under section 13DA(2) of the Valuation of Land Act 1960.
In this Act—
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;
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;
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
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—
to the limited nature of the tenure of such residence area as provided in the said Act;
to the restrictions imposed by or under the said Act upon the occupation and user thereof; and
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.
In this Act—
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;
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;
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
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—
to the limited nature of the right granted by such licence as provided in the said Act;
to any restrictions imposed by or under the said Act upon the occupation and user of the land to which the licence relates; and
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.
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—
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;
the curbing flagging paving or asphalting of any portion or portions of the footways or pathways abutting upon any such land;
the supplying installing and connecting of sewerage fittings and connexions to the dwelling-house;
the provision of drainage for the land (whether or not wholly upon the land);
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
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)).
In this Act—
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)).
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).
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), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 10.2).
For the purposes of the definition of domestic partner in section 3(1)—
registered relationship has the same meaning as in the Relationships Act 2008; and
in determining whether persons who are not in a registered relationship 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 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
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).
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S. 3(8) inserted by No. 6457 s. 2, amended by No. 7097 s. 2(c)(i)(ii).
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).
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).
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.
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).
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S. 4(3) inserted by No. 9699 s. 22, repealed by No. 44/2001 s. 3(Sch. item 19.1).
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S. 4A inserted by No. 44/2001 s. 3(Sch. item 19.2).
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 co-operative housing society;
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.
A co-operative housing society may be formed for all or any of the following objects—
to enable each of its members—
to purchase land and to erect a dwelling-house thereon; or
to erect a dwelling-house on land already owned by him; or
S. 5(1)(a)(iia) inserted by No. 8978 s. 2(1).
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).
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).
to maintain and keep in proper repair his dwelling-house; or
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).
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).
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).
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.
No. 6138 s. 6.
S. 6 amended by Nos 36/1990 s. 14(1), 37/1999 s. 58(Sch. 2 Pt 2 item 1) (ILA s. 39B(1)).
A society may, subject to this Act and its rules, raise money on loan or in accordance with section 33(1A) for the objects of the society.
S. 6(2) inserted by No. 37/1999 s. 58(Sch. 2 Pt 2 item 1).
Subsection (1) does not apply to section 33(1B), (1C) or (1D).
Part II—Incorporation of societies
Division 1—Registration, &c.
No. 6138 s. 7.
S. 7 amended by No. 6909 s. 2.
A society shall be formed with limited liability.
Unless otherwise provided by the rules, any person who is not under the age of sixteen years shall subject to this Act be eligible to be a member of a society.
S. 7(3) substituted by No. 9075 s. 5(2).
A member of a society shall not at any time be entitled on any ground relating to his minority or former minority to avoid any of his obligations or liabilities as a member of the society or under any mortgage given by him to the society.
No person shall at any one time be a member of more than one society unless—
before becoming a member of each society (other than the one of which he is first a member) he obtains the consent in writing of the registrar; and
all societies of which he is a member have the same registered office:
Provided that in the case of a person who was lawfully a member of two societies before the commencement of the Co-operative Housing Societies Act 1950 nothing in this subsection shall be deemed—
to require any consent of the registrar to his membership of either such society; or
to render his membership of either such society unlawful:
S. 7(4) Further Proviso amended by No. 8298 s. 2.
Provided further that nothing in this subsection shall apply to or in respect of any person becoming or being registered as the holder of shares in any society as executor or administrator of a deceased member or as the trustee within the meaning of the Commonwealth Act known as the Bankruptcy Act 1966 as amended from time to time of the estate of a member or deceased member.
No. 6138 s. 8.
S. 8(1) amended by Nos 6821 s. 4(a), 9075 s. 5(2), 36/1990 s. 13(a).
A society may be formed by any five or more persons who are not under the age of eighteen years and who are eligible under this Act and the rules as later approved and registered to be members of the society.
S. 8(2) amended by Nos 6821 s. 4(a), 36/1990 s. 13(a).
No society shall be registered unless there has been a meeting at which there have been present five or more such persons.
S. 8(3) amended by No. 6821 s. 4(b).
At the meeting there shall be presented—
a written statement showing the objects of the society and the reasons for believing that, when registered, it will be able to carry out its objects successfully; and
a copy of the rules which it is proposed to tender for registration.
S. 8(4) repealed by No. 6821 s. 4(c).
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S. 8(5) amended by Nos 6821 s. 4(d), 36/1990 s. 13(a).
If at the same or any subsequent or adjourned meeting, after consideration of the statement and rules, five or more such persons as aforesaid approve the rules with or without amendment and sign an application for membership, they shall proceed to elect the first directors of the society in accordance with the rules as so approved.
Within two months after the election of directors an application shall be made in the prescribed manner to the registrar for the registration of the society and shall be accompanied by—
a statutory declaration or statutory declarations by the persons who acted as chairman and secretary of the meeting as to compliance with the requirements of this section;
a copy of the statement presented to the meeting;
S. 8(6)(c) amended by Nos 6821 s. 4(e), 36/1990 s. 13(a).
two copies of the proposed rules signed by not less than five applicants for membership, each of whose signatures shall be attested by a witness;
a list containing the full name and the occupation and address of each director;
a list containing the full name and the occupation and address of each applicant for membership and the number of shares subscribed for by him; and
such other particulars as are prescribed by regulation:
Provided that where before the expiration of the said period of two months a request in writing for the extension of that period is lodged with the registrar and the registrar is satisfied that circumstances beyond the control of the society have precluded and will preclude the making of the application for registration within the said period of two months, the registrar may if he thinks fit by writing extend the period for the making of the application by such further period (not exceeding one month) as he thinks proper, and in any such case the making of the application within such further period shall be deemed and taken to be in compliance with the provisions of this Act.
The statutory declaration or statutory declarations mentioned in subsection (6) of this section may be accepted by the registrar as sufficient evidence of compliance with the requirements of this section.
S. 8(8) amended by Nos 8339 s. 2(1)(Sch. 2 item 2(i)), 36/1990 s. 13(b).
If the registrar is satisfied that the society has complied with the provisions of this Act and the regulations, that the proposed rules of the society are not contrary to this Act or to the regulations and are suitable and sufficient for the purposes of the society, and that there are reasonable grounds for believing that the society will be able to carry out its objects successfully, the registrar may register the society and its rules and issue a certificate in the prescribed form to the effect that the society is incorporated under this Act.
The expenses of and incidental to the formation of the society may be paid either out of capital or out of income.
No. 6138 s. 9.
S. 9(1) amended by Nos 6455 s. 2(Sch. 1 Pt 3(e)), 6839 s. 4(Sch. 1 Pt 3(e)), 119/1986 s. 142(Sch. 2 item 3) (as amended by No. 36/1990 s. 23(c)), 48/1992 s. 95(b), substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 3), amended by No. 44/2001 s. 3(Sch. item 19.3).
A society may not be registered by a name identical with that by which a society is already registered, or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the Registrar is calculated to deceive.
S. 9(2) amended by Nos 37/1999 s. 58(Sch. 2 Pt 1 item 4), 44/2001 s. 3(Sch. item 19.3).
If a society through inadvertence or otherwise is registered by a name identical with that by which a society is already registered, or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the registrar to be calculated to deceive, the society shall, if the registrar so directs, change its name.
S. 9(3) substituted by No. 37/1999 s. 58(Sch. 2 Pt 1 item 5), amended by No. 44/2001 s. 3(Sch. item 19.3).
A society may change its name by special resolution if the new name is not identical with that of any society previously registered and still subsisting or so nearly resembling that name or the name of any body corporate registered under the Corporations Act as in the opinion of the Registrar is calculated to deceive unless the society or body corporate is in course of being wound up and consents in writing to the registration.
Notice in writing of any change of name, together with the certificate of incorporation, shall be sent to the registrar within such time after the passing of the special resolution as is prescribed.
The registrar shall register the change of name, and shall either note the change on the certificate of incorporation or issue a new certificate of incorporation in lieu thereof in the prescribed form.
The change of name shall be advertised as prescribed.
The change of name shall not affect the identity of the society or any right or obligation of the society or of any member or other person, or render defective any legal proceedings by or against the society.
Any legal proceedings that might have been continued or commenced against the society by its former name may be continued or commenced against it by its new name.
No. 6138 s. 10.
A certificate of incorporation under this Act shall be conclusive evidence that all the requirements of this Act in respect of registration and matters precedent or incidental thereto have been complied with:
Provided that nothing in this section shall affect any provision of this Act relating to the winding up or dissolution of the society or the cancellation of its registration.
No. 6138 ss 11–23.
Pt 2 Div. 2 (Heading and ss 11–23) amended by No. 8786 s. 3, substituted as Pt 2 Div. 2 (Heading and ss 11–18) by No. 48/1992 s. 96.
Division 2—Mergers and transfers of engagements
S. 11 substituted by No. 48/1992 s. 96.
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