1Name of Act and commencement
(1)
This Act may be cited as the Roman Catholic Church Communities’ Lands Act
1942.
(2)
This Act shall commence upon the first day of
December one thousand nine hundred and forty-two.
2Definitions
(1)
Assets means any legal or
equitable estate or interest (whether present or future and whether vested or
contingent) in real or personal property of any description (including money),
and includes securities, choses in action and documents.
Bishop means the person for the
time being administering a diocese, whether as Archbishop or Bishop, Coadjutor
Archbishop or Coadjutor Bishop, Vicar Capitular or Administrator,
Vicar-General or Priest with Extraordinary Faculties.
Church means the Roman Catholic
Church.
means any of the
following orders, congregations, communities and associations of the
Church:
(i)
The Sisters of the Brigidine
Congregation,
(ii)
The Brothers of the Christian Schools of
Ireland,
(iii)
Brothers of the Christian
Schools,
(iv)
The Sisters of Saint Dominic of New South
Wales,
(v)
Sisters of the Good Samaritan of the Order of
Saint Benedict,
(vi)
The Sisters of Mercy
(Parramatta),
(vii)
The Society of Mary for the Province of
Australia,
(viii)
The Society of Mary for the Province of
Oceania,
(ix)
The Marist Brothers of the
Schools,
(x)
The Sisters of Mercy (North
Sydney),
(xi)
The Fathers of the Passion,
(xii)
The Sisters of Saint Joseph of the Sacred
Heart,
(xiii)
The Congregation of the
Mission,
(xiv)
Our Lady’s Nurses of the
Poor,
(xv)
Daughters of Our Lady of the Sacred
Heart,
(xvi)
The Order of Preachers,
(xvii)
The Sisters of Mercy, Diocese of
Bathurst,
(xviii)
The Sisters of St. Joseph, Diocese of
Bathurst,
(xix)
The Sisters of Charity of
Australia,
(xx)
The Sisters of Mercy, Diocese of
Lismore,
and any order, congregation, community, association or
society named in the first column of Schedule 2.
means the consultors for the time being of a
community, and, in the case of there being no consultors of a community,
includes the members for the time being of the governing council of a
community constituted according to rules, practices and usages.
Community land means land
situated in New South Wales for the time being subject to any trust created
before or after the commencement of this Act for a community, or for the use
or benefit or for any purpose of a community, but does not include any land
which is church trust property within the meaning of the Roman Catholic Church Trust Property Act
1936.
Court means the Supreme
Court.
Land includes tenements and
hereditaments, corporeal and incorporeal, and every estate and interest
therein whether vested or contingent, freehold or leasehold, and whether at
law or in equity.
Liabilities means any
liabilities, debts or obligations (whether present or future and whether
vested or contingent).
Member of a body corporate that
is the trustee of community land for a community means:
(a)
the Provincial for the community,
and
(b)
the community consultors for the
community.
Provincial means the person
for the time being acting as Provincial-General for New South Wales of a
community, and includes the person for the time being acting as Provincial,
Superior, Leader or President, as the case may be, of a community of which
there is no Provincial-General for New South Wales.
Relevant diocese in
relation to a body corporate means the Diocese within which the principal site
or house in New South Wales of the community of whose land the body corporate
is or was the trustee is or was last situated.
Rights means any rights, powers,
privileges or immunities (whether present or future and whether vested or
contingent).
(2)
(a)
The Governor may:
(i)
upon the written request of the
Provincial-General, Provincial, Superior, Leader or President of any order,
congregation, community, association or society of the Church which is not a
community within the meaning of this Act, and
(ii)
upon the presentation of a certificate, under the
hand and seal of the Bishop of the Diocese within which the principal site or
house in New South Wales of such order, congregation, community, association
or society is situated, and to the effect that the Bishop of such Diocese
approves of such order, congregation, community, association or society being
a community for the purposes of this Act,
by proclamation published on the NSW legislation
website, add the name of such order, congregation, community, association or
society to the first column of Schedule 2, and add to the second column of
Schedule 2, the corporate name of the trustees of such order, congregation,
community, association or society.
(a1)
The Governor may, by proclamation published on
the NSW legislation website, alter a name in Schedule 2 or substitute some
other name for such a name.
(a2)
Where the corporate name of a body corporate
referred to in Schedule 2 is altered or some other name is substituted for
that name in accordance with paragraph (a1), the alteration or substitution
shall not:
(i)
prejudice or affect in any way the continuity of
the body corporate in respect of which that alteration or substitution is
made,
(ii)
affect any property, powers, rights, authorities,
duties, functions, liabilities or obligations of that body corporate,
or
(iii)
render defective any legal or other proceedings
instituted or to be instituted by or against that body
corporate,
and any legal or other proceedings may be continued or
commenced by or against that body corporate by the name to which the name of
that body corporate has been altered or which has been substituted for the
name of that body corporate that might have been continued or commenced by or
against that body corporate by the name by which that body corporate was known
before that alteration or substitution.
(b)
Schedule 2 with the additions, alterations and
substitutions made thereto pursuant to this subsection shall be deemed to be
Schedule 2 to this Act.
s 2: Am 1943 No 41,
sec 2 (a); 1948 No 2, sec 2 (a); 1972 No 10, sec 3 (a); 2001 No 11, Sch 1
[1]–[5]; 2009 No 56, Sch 4.59 [1].
3Trustees for community land
There shall be, for each community, trustees of
community land, who shall be the provincial and the community consultors of
that community.
4Trustees to be bodies corporate
(1)
The trustees of community land for each community
shall, by virtue of this Act, be a body corporate, having perpetual succession
and a common seal, and being capable of acquiring, holding and disposing of
any property, real or personal, and of suing and being sued in its corporate
name and of doing and suffering all such acts and things as bodies corporate
may by law do or suffer.
(2)
The corporate names of the trustees of community
land for the several communities shall be:
(a)
for the Sisters of the Brigidine Congregation,
the “Trustees of the Sisters of the Brigidine Congregation”,
and
(b)
for the Brothers of the Christian Schools of
Ireland, the “Trustees of the Christian Brothers”,
and
(c)
for the Brothers of the Christian Schools, the
“Trustees of the De La Salle Brothers”, and
(d)
for the Sisters of Saint Dominic of New South
Wales, the “Trustees of the Sisters of Saint Dominic”,
and
(e)
for the Sisters of the Good Samaritan of the
Order of Saint Benedict, the “Trustees of the Sisters of the Good
Samaritan”, and
(f)
for the Sisters of Mercy (Parramatta), the
“Trustees of the Sisters of Mercy (Parramatta)”,
and
(g)
for the Society of Mary for the Province of
Australia, the “Trustees of the Marist Fathers for the Province of
Australia”, and
(h)
for the Society of Mary for the Province of
Oceania, the “Trustees of the Marist Missions of the Pacific”,
and
(i)
for the Marist Brothers of the Schools, the
“Trustees of the Marist Brothers”, and
(j)
for the Sisters of Mercy (North Sydney), the
“Trustees of the Sisters of Mercy (North Sydney)”,
and
(k)
for the Fathers of the Passion, the
“Trustees of the Passionist Fathers”, and
(l)
for the Sisters of Saint Joseph of the Sacred
Heart, the “Trustees of the Sisters of Saint Joseph”,
and
(m)
for the Congregation of the Mission, the
“Trustees of the Vincentian Fathers”, and
(n)
for Our Lady’s Nurses of the Poor, the
“Trustees of Our Lady’s Nurses of the Poor”,
and
(o)
for the Daughters of Our Lady of the Sacred
Heart, the “Trustees of the Daughters of Our Lady of the Sacred
Heart”, and
(p)
for the Order of Preachers, the “Trustees
of the Dominican Fathers”, and
(q)
for the Sisters of Mercy, Diocese of Bathurst,
the “Trustees of the Sisters of Mercy, Diocese of Bathurst”,
and
(r)
for the Sisters of St. Joseph, Diocese of
Bathurst, the “Trustees of the Sisters of St. Joseph, Diocese of
Bathurst”, and
(s)
for the Sisters of Charity of Australia, the
“Trustees of the Sisters of Charity of Australia”,
and
(t)
for the Sisters of Mercy, Diocese of Lismore, the
“Trustees of the Sisters of Mercy, Diocese of
Lismore”,
and for each community named in the first column of
Schedule 2 shall be the corporate name set out opposite thereto in the second
column of such Schedule.
(3)
The objects of a body corporate created by this
Act include:
(a)
the operation and conduct of educational, welfare
and health institutions, organisations or other bodies,
and
(b)
the performance of all such acts, matters and
things of any nature (which may include, without limiting the scope of this
paragraph, borrowing money) as, in its opinion, are or may be for its benefit
or for the benefit of the community to which it
relates.
s 4: Am 1943 No 41,
sec 2 (b); 1948 No 2, sec 2 (b); 1986 No 191, Sch 1 (2); 2001 No 11, Sch 1
[4].
5Common seal and quorum
(1)
The members for the time being of each body
corporate created by this Act shall have the custody of its common seal, and
the form of such seal and all other matters relating thereto shall, subject as
in this section mentioned, be, from time to time, determined at a meeting of
the body corporate.
(2)
The provincial and two other members of each such
body corporate shall constitute a quorum for the purpose of any meeting of the
body corporate.
(3)
Every meeting of any such body corporate at which
a quorum is present shall be competent to transact any business of the body
corporate.
(4)
The common seal of any such body corporate shall
not be affixed to any instrument except in pursuance of a resolution passed at
a meeting of the body corporate.
(5)
Every instrument to which the common seal is so
affixed shall be signed by the provincial who is a member of the body
corporate and by two other members of the body
corporate.
6Vacancies in membership
(1)
Except as in this section mentioned, no capacity
or power of a body corporate created by this Act shall be affected by the
existence of vacancies in its membership.
(2)
Where for any reason a quorum of a body corporate
created by this Act cannot be constituted all powers exercisable by the body
corporate and its capacity for doing any act or thing shall be suspended, but
shall, by virtue of this Act, revive as soon as a quorum of such body
corporate is capable of being constituted.
7Execution of instruments
(1)
Every instrument bearing what purports to be the
common seal of a body corporate created by this Act and purporting to be
signed by the provincial thereof and two other members of that body corporate
shall, in favour of every person claiming for value and in good faith, under
or through that instrument, be conclusively presumed to have been duly
executed by the body corporate the common seal of which it purports to
bear.
(2)
Section 51A of the Conveyancing Act
1919-1939 shall not apply to or in respect of any
instrument executed by a body corporate created by this
Act.
8Vesting of Communities’ land
(1)
All community land of a community shall by virtue
of this Act:
(a)
vest in the body corporate constituted under this
Act for that community, and
(b)
be thereupon divested from the person in whom it
was thereinbefore vested.
(2)
No vesting by virtue of this Act shall affect any
encumbrance, lien, estate or interest to which, at the time of the vesting,
the property so vested was subject in the hands of the person from whom it was
divested.
The body corporate in which the property vests
shall become, jointly with the person liable at the time of the vesting, and
severally, liable under every contract, engagement and cause of action, in
relation to the property vested, under which the person from whom the property
was divested was liable at the time of the vesting.
The body corporate shall be liable to indemnify
the person from whom the property was divested his executors and
administrators against every claim, action, suit and other proceeding which
shall be made or taken in respect of any such contract engagement or cause of
action.
The person from whom the property was divested
shall have a charge or lien on the property divested to the extent to which
and in the circumstances in which the charge or lien would have attached if
the property had not been divested; but the charge or lien, or possibility
thereof, shall, in favour of a person dealing for value with the body
corporate in which the property is vested be deemed not to exist unless and
until the person entitled thereto has after the commencement of this Act and
before such dealing given written notice to the body corporate of its
existence or of the possibility of its arising.
A statement under the common seal of the body
corporate that no such notice has been received before such dealing shall be
conclusive evidence of the fact so stated in favour of any person dealing for
value with the body corporate in respect of the divested
property.
(3)
Subsections (1) and (2) shall, in their
application to and in respect of the communities referred to in paragraphs
(xix) and (xx) of the definition of and the community
lands of those communities, have and take effect as on and from the
commencement of the Roman Catholic Church Communities’ Lands (Amendment)
Act 1943; and for the purposes of such application the
reference in subsection (2) to the “commencement of this Act”
shall be read and construed as a reference to the “commencement of the
Roman
Catholic Church Communities’ Lands (Amendment) Act
1943”.
(4)
Subsections (1) and (2) shall, in their
application to and in respect of the communities named in the first column of
Schedule 2 as inserted by the Roman Catholic Church
Communities’ Lands (Amendment) Act 1948, and the
community lands of those communities, have and take effect as on and from the
commencement of the Roman Catholic Church Communities’ Lands (Amendment)
Act 1948; and for the purposes of such application the
reference in subsection (2) to the “commencement of this Act”
shall be read and construed as a reference to the “commencement of the
Roman
Catholic Church Communities’ Lands (Amendment) Act
1948”.
(5)
Subsections (1) and (2) shall, in their
application to and in respect of any community the name of which is added to
the first column of Schedule 2 pursuant to the provisions of subsection (2) of
section 2, and the community lands of any such community, have and take effect
as on and from the date of publication of the proclamation adding the name of
such community to the said Schedule; and for the purposes of such application
the reference in subsection (2) to the “commencement of this Act”
shall be read and construed as a reference to the date of “publication
of the proclamation adding to Schedule 2 the name of the community for which
the body corporate is constituted”.
s 8: Am 1943 No 41,
sec 2 (c); 1948 No 2, sec 2 (c); 2001 No 11, Sch 1 [4]; 2009 No 56, Sch 4.59
[2].
9Certain lands not to vest until consent
given
(1)
Notwithstanding section 8, where it appears from
any instrument registered before the commencement of this Act in any register
kept under the provisions of the Registration of Deeds Act
1897 or the Real Property Act
1900 that any of the persons whose names are set out in
Schedule 1 is at such commencement a trustee either alone or with others of
any community land or was at any time before such commencement a trustee
either original or substituted and either alone or with others of any
community land but had ceased to be a trustee by death, retirement or
otherwise and no new trustee has or had been appointed in his place, such
community land shall not vest in the body corporate constituted by this Act
for the community concerned or be divested from the person in whom it was
thereinbefore vested until the body corporate constituted by the Roman Catholic Church Trust Property Act
1936, for the diocese in which the land is situated has
consented in writing to such vesting.
(2)
Upon the giving of such consent in writing and as
from the date thereof section 8 shall apply to such
land.
(3)
Any such consent shall be conclusive evidence
that the land in respect of which it is given is situated within the diocese
for which the body corporate giving such consent was
constituted.
s 9: Am 1948 No 2,
sec 2 (d); 2001 No 11, Sch 1 [6].
10Powers of bodies corporate
(1)
A body corporate created by this Act has all of
the powers of a natural person, including (without limiting the scope of those
powers) the power:
(a)
(i)
to purchase, take on lease or acquire by gift,
devise, bequest, exchange or otherwise any real or personal property,
and
(ii)
by itself or by any servant or agent authorised
in writing in that behalf under its common seal to deal with and dispose of
moneys, choses in action and choses in possession at any time vested in it or
in any person on its behalf, and
(iii)
by itself or by any servant or agent authorised
in writing in that behalf under its common seal to draw, make, accept, endorse
and discount promissory notes, bills of exchange and other negotiable or
transferable securities or instruments, and
(iv)
to do and perform all such acts, matters and
things and make and execute all such contracts, documents, writings and
assurances as in its opinion are or may be for its benefit or the benefit of
the Church,
(b)
in relation to any community land at any time
vested in it or in relation to any other land (being land, situated outside
New South Wales, for the time being subject to any trust created before or
after the commencement of this Act, or after the commencement of the Roman Catholic
Church Communities’ Lands (Amendment) Act 1943, for
a community or for the use or benefit or for any purpose of a community) at
any time vested in it:
(i)
to sell it and to exchange it for other land and
to transfer or convey community land or other land so sold or exchanged to the
purchaser or person taking in exchange, whether alone or jointly with another
person, freed and discharged from all trusts affecting the same in the hands
of the body corporate, and
(ii)
to demise or let it for such term at such rent
and with or without taking a premium, fine or foregift and subject to such
provisions as to the body corporate shall appear desirable,
and
(iii)
to accept surrenders of leases upon such terms
and subject to such conditions as to the body corporate shall appear
desirable, and
(iv)
to borrow money on the security of it on such
terms and conditions as to the body corporate shall appear desirable,
and
(v)
to declare trusts of it or of any estate or
interest in it created by the body corporate for any community of the Church
or for the use or benefit of or for any purpose of any such community and
either to retain the property in relation to which trusts are so declared or
to vest it or any estate or interest so created in other trustees upon the
trusts so declared, and
(vi)
to transfer or convey it without consideration to
any corporate body created by this Act or by the Roman Catholic
Church Trust Property Act 1936,
(vii)
notwithstanding anything contained in any Act to
sell and convey community land resumed either before or after the commencement
of this Act under the provisions of the Public Works
Act 1912 or any other Act authorising the compulsory
acquisition of land and to agree upon and receive all compensation money
whatsoever payable in respect of the resumption,
(c)
to borrow money on the security of personal
property or without security on such terms and conditions as to the body
corporate shall seem desirable,
(d)
in relation to real and personal property outside
the State of New South Wales at any time vested in or owned by it to delegate
by writing under its common seal to an attorney or attorneys all or any of the
powers in this section set out, and
(e)
to execute any document and to do any other thing
the execution or doing of which, in its opinion, is necessary or convenient to
achieve its objects.
(2)
Nothing herein contained shall limit or be deemed
to limit the generality of subsection (1) of section 4 of this Act or affect
the construction of section 9 of the Roman Catholic Church Trust
Property Act 1936.
s 10: Am 1943 No 41,
sec 2 (d); 1948 No 2, sec 2 (e); 1986 No 191, Sch 1 (3).
11Additional powers of bodies corporate
(1)
Every body corporate created by this Act shall
have power from time to time to apply for and obtain representation of the
estate of any deceased person being a member of the community for which such
body corporate was constituted by this Act or being a person under whose will
such community or such body corporate is a beneficiary and to do all things
necessary to administer such estate.
(2)
Any officer authorised for the purpose by the
body corporate may on behalf of the body corporate swear affidavits, make
declarations, statements of defence or other statements, give security and do
any other act or thing required by any Charter, Act of Parliament or rule of
court to be made by persons making application for probate or letters of
administration.
(3)
Whenever the body corporate shall have been
appointed executor or administrator it shall be subject in all respects to the
same control and to removal or restraint from acting and generally to the
jurisdiction of the courts in the same manner as any other executor or
administrator and all the property real and personal of the body corporate and
the members thereof and their respective estates shall be liable for the
proper discharge of the duties of such office.
12Protection of purchasers etc
(1)
No purchaser, mortgagee, lessee or other person
dealing with a body corporate created by this Act, and neither the
Registrar-General, nor the Crown Solicitor nor any other person registering or
certifying title, shall, upon any sale, exchange, mortgage, lease or other
dealing purporting to be made under a power conferred by this Act, be
concerned to see or inquire into the necessity for, or the propriety of, or
the mode of exercising the same, or be affected by notice that the exercise of
the power is unauthorised, irregular or improper.
(2)
A receipt for any money payable to the body
corporate, signed by the provincial who is a member thereof, shall be
sufficient discharge in favour of, and shall exonerate, the person paying such
money from all responsibility for the application of such
money.
13Effect of instruments executed by bodies
corporate
(1)
Notwithstanding section 9:
(a)
The execution by a body corporate created by this
Act of an instrument purporting to deal with land not under the provisions of
the Real Property Act 1900 shall, in favour
of every person claiming any estate or interest under or through that
instrument, and against every body corporate created by this Act, be
conclusive evidence that the land thereby dealt with was at the time of such
execution community land, and that, at the time of such execution, the body
corporate had the estate or interest therein sufficient to make the instrument
effective to pass or create the estate or interest which the instrument
purported to pass or create.
(b)
The execution in accordance with this Act by a
body corporate of an instrument purporting to deal with land not under the
provisions of the Real Property Act
1900 shall, if such instrument is registered under the
provisions of the Registration of Deeds Act 1897, be
conclusive evidence that the land thereby dealt with was at the time of such
execution community land, and that the body corporate had the estate or
interest therein sufficient to make the instrument effective to pass or create
the estate or interest which the instrument purported to pass or create, in
favour of every person claiming any estate or interest thereunder and having
taken for value without notice that the land so purported to be dealt with was
not community land or that the body corporate had not the estate or interest
which it thereby purported to have, and in favour of every person claiming
through or under him, as against any person having or claiming to have an
estate or interest in such land other than an estate or interest under an
instrument registered under the provisions of the Registration of Deeds Act
1897, prior to the registration of the firstmentioned
instrument.
(2)
Any person other than a body corporate created by
this Act, deprived of any estate or interest in land by any such instrument,
may bring and prosecute an action for damages against the body corporate by
which the instrument was executed, and may recover the amount of a judgment
therefor out of any real or personal property for the time being vested in
such body corporate, and any real or personal property taken by a purchaser on
a sale pursuant to any execution shall be freed from all trusts affecting the
same, except in the case of a trust created by the Crown, and the proceeds of
every such sale shall, in the hands of the Sheriff, and of the execution
creditor, be freed from all trusts to which it would be subject in the hands
of the execution debtor.
14Evidence
(1)
A certificate, given under the common seal of a
body corporate constituted under this Act, that the land described in the
certificate is community land of the community in respect of which the body
corporate is constituted, which has endorsed thereon or annexed thereto the
consent of the body corporate constituted by or under the Roman Catholic Church Trust Property Act
1936, for the diocese in which the land described in the
certificate is situated, shall, whether or not any of the persons whose names
are set out in Schedule 1 is at the commencement of this Act a trustee either
alone or with others of such land, or was at any time before such commencement
a trustee either original or substituted and either alone or with others of
such land:
(a)
be conclusive evidence of the fact so certified,
for the purpose of any application by that body corporate to be registered as
the proprietor pursuant to a vesting by this Act of land under the provisions
of the Real Property Act
1900, of which a body corporate constituted by this Act is
not registered proprietor, and
(b)
be prima facie evidence of the fact so certified,
for all purposes whether in civil or criminal proceedings or
otherwise.
(2)
Any such consent shall be conclusive evidence
that the land in respect of which the consent is given is situated within the
diocese for which the body corporate giving the consent was
constituted.
s 14: Am 1948 No 2,
sec 2 (f); 2001 No 11, Sch 1 [6].
15Trusts preserved
All property real or personal for the time being
vested in a body corporate created by this Act shall be held by it on the
trusts, if any, expressly declared in respect thereof and if no such trusts
have been expressly declared on trust for the community for which the body
corporate exists for the use, purposes and benefit of such community: Provided
however that the powers conferred by section 10 shall be exercisable by the
body corporate in relation to all property vested in it notwithstanding any
such trust or provision.
16Validation of grants
No title to any land granted by the Crown before
the commencement of this Act for or for the use, benefit or purposes of any
community to which this Act applies shall be held bad either at law or in
equity by reason of any breach or non-performance before or after the
commencement of this Act of any condition, trust or proviso contained in the
grant by the Crown of the land and every provision for forfeiture or reverter
in respect of any such breach or non-performance shall be deemed to have been
released by the Crown as from the date of the Crown
Grant.
17Variation of trusts
(1)
If, after the creation of the trusts to which any
real or personal property vested in or held by a body corporate constituted by
this Act is for the time being subject, it has, in the opinion of the body
corporate, become impossible or inexpedient to carry out or observe those
trusts, the body corporate may by resolution declare that opinion, and by the
same or a later resolution declare other trusts subject to which such property
may be held, being trusts for the use, benefit or purposes of the community to
which the body corporate relates.
(2)
A resolution declaring other trusts causes the
replaced trusts to cease and determine and the property which was subject to
those trusts shall be held subject to the other trusts.
(3)
The property shall be dealt with as nearly as may
be possible for the purposes for which the property was, immediately before
the resolution, held unless the body corporate by resolution declares that by
reason of circumstances arising after the creation of the replaced trusts it
is, in the opinion of the body corporate, impossible or inexpedient to deal
with or apply the property or some part of the property for the same or like
purposes.
(4)
If a resolution is passed under subsection (3) in
relation to property or some part of property, the property or part of the
property may be dealt with and applied for the use, benefit or purposes of the
community subject to the trusts declared by resolution of the body
corporate.
(5)
This section applies to trusts created before or
after the commencement of the Roman Catholic Church
Communities’ Lands (Amendment) Act
1986.
(6)
In subsection (1), the reference to trusts which
have been created includes a reference to trusts declared by a resolution
passed under this section.
s 17: Ins 1986 No
191, Sch 1 (4).
18Blending of trust funds
(1)
Where a body corporate holds money on trust for
different purposes or activities it shall be lawful for the body corporate
from time to time:
(a)
to invest the money or any part or parts of the
money as one fund, and
(b)
to distribute income arising from the investment
of the fund rateably for the benefit of carrying out the several purposes or
activities for which the money invested is held on
trust.
(2)
Any loss arising from an investment in accordance
with this section shall be distributed rateably to the detriment of carrying
out the several purposes or activities for which the money invested is held on
trust.
s 18: Ins 1986 No
191, Sch 1 (4).
19Exemption from duty
(1)
An instrument executed only for:
(a)
a purpose ancillary to, or consequential on, the
operation of section 8, 22 or 23, or
(b)
the purpose of giving effect to those
sections,
shall be exempt from duty under the Duties Act 1997.
(2)
An instrument, being an agreement for the sale,
conveyance or demise of any property:
(a)
from a body corporate created by this Act to
another body corporate so created or to a body corporate created under the
Roman Catholic Church Trust Property Act
1936, or
(b)
from a body corporate created under the Roman Catholic Church Trust Property Act
1936 to a body corporate created by this
Act,
shall be exempt from duty under the Duties Act 1997.
(3)
Any other instrument to which the only parties
are:
(a)
one or more bodies corporate created by this Act,
or
(b)
one or more bodies corporate created by this Act
and one or more bodies corporate created by the Roman Catholic
Church Trust Property Act 1936,
is exempt from duty under the Duties Act 1997.
s 19: Ins 1986 No
191, Sch 1 (4). Am 1997 No 55, Sch 1.21; 2001 No 11, Sch 1 [7]–[9]; 2004
No 91, Sch 1.32.
20Voluntary winding up
(1)
A body corporate created by this Act may be
voluntarily wound up under this section if:
(a)
a notice of the proposed voluntary winding up of
the body corporate is published in a newspaper circulating in the relevant
diocese, and
(b)
at least one month after that notice is published
at least 75 per cent of the members of the body corporate have passed a
resolution in favour of voluntary winding up, and
(c)
the Bishop of the relevant diocese has issued a
certificate under the Bishop’s hand and seal:
(i)
approving the voluntary winding up of the body
corporate, and
(ii)
certifying that the requirements of this
subsection have been satisfied in relation to the body
corporate.
(2)
Except with the leave of the Court, the members
of a body corporate cannot resolve that it be wound up voluntarily if
proceedings for the body corporate to be wound up by the Court under section
21 have been commenced and have not been finally
determined.
(3)
A body corporate is not authorised to acquire any
assets or incur any liabilities after the passing of a resolution under
subsection (1) (b) that it be wound up voluntarily. However, the corporate
status and other corporate powers of the body corporate continue until it is
wound up under this section.
(4)
If the Bishop has certified that all of the
requirements of subsection (1) have been satisfied in relation to a body
corporate, the body corporate must be wound up.
(5)
The Bishop who approves a voluntary winding up of
a body corporate must ensure that notice of the winding up of a body corporate
under the Corporations Act 2001 of the
Commonwealth is published in a newspaper circulating in the relevant
diocese.
(6)
Subsection (3) ceases to apply if the Bishop
decides not to approve a voluntary winding up.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
21Winding up by the Court
(1)
The Court may order the winding up of a body
corporate created by this Act if:
(a)
at least 75 per cent of the members of the body
corporate have passed a resolution in favour of winding up by the Court,
or
(b)
the community of whose land the body corporate is
the trustee has suspended its operations or religious duties, or both, for a
continuous period of not less than 12 months (whether before or after the
commencement of this section) immediately before the order is made,
or
(c)
the body corporate is unable to meet its
liabilities, or
(d)
the Court is otherwise of the opinion that it is
just and equitable that the body corporate be wound
up.
(2)
An application to the Court for the winding up of
a body corporate may be made by:
(a)
the body corporate (but only if a resolution is
passed by at least 75 per cent of the members of the body corporate in favour
of making the application), or
(b)
the Bishop of the relevant
Diocese.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
22Procedure for winding up
(1)
The winding up of a body corporate in New South
Wales is declared to be an applied Corporations legislation matter for the
purposes of Part 3 of the Corporations (Ancillary Provisions)
Act 2001 in relation to the provisions of Chapter 5 of the
Corporations Act 2001 of the
Commonwealth (the applied provisions),
subject to the following modifications:
(a)
the applied provisions have effect subject to the
provisions of sections 20 and 21 of this Act,
(b)
a reference in the applied provisions to a
company, Part 5.1 body or Part 5.7 body is taken to include a reference to a
body corporate,
(c)
a past or present member of a body corporate is
not liable to pay the body corporate’s liabilities on the winding up or
the costs, charges or expenses of the winding up despite anything to the
contrary in the applied provisions,
(d)
the distribution of surplus property after a body
corporate is wound up is to be dealt with in accordance with section 23
despite anything to the contrary in the applied
provisions,
(e)
such other modifications (within the meaning of
Part 3 of the Corporations (Ancillary Provisions)
Act 2001) as may be prescribed by the
regulations.
(2)
The regulations may provide for the Australian
Securities and Investments Commission to exercise a function under any
provision of the Corporations Act 2001 of the
Commonwealth that is the subject of the declaration under subsection (1), but
only if:
(a)
the Australian Securities and Investments
Commission is to exercise that function pursuant to an agreement of the kind
referred to in section 11 (8) or (9A) (b) of the Australian Securities and
Investments Commission Act 2001 of the Commonwealth,
and
(b)
the Australian Securities and Investments
Commission is authorised to exercise that function under section 11 of the
Australian Securities and Investments Commission Act
2001 of the Commonwealth.
(3)
Section 17 of the Corporations
(Ancillary Provisions) Act 2001 has effect in relation to
a regulation under subsection (2) as if subsection (1) had expressly made
provision for the Australian Securities and Investments Commission to exercise
the functions concerned.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
23Distribution of surplus property
(1)
Despite the provisions of any other Act or law,
if there is property of a former body corporate after the body corporate is
wound up, the liquidator must transfer the property to another body corporate
created by this Act, or under the Roman Catholic Church Trust
Property Act 1936, specified in writing by the Bishop of
the relevant Diocese of the wound up body corporate.
(2)
The Bishop of the relevant Diocese must inform
the Attorney General of that transfer.
(3)
The transfer of property under this section does
not affect any trust on which the assets were held immediately before the
distribution, and any such trust continues.
(4)
To the extent to which it is possible or
expedient, a person or body to whom property was transferred under this
section must, if the property concerned was transferred or given on trust for
any purpose, hold that property as nearly as may be possible for that
purpose.
Editorial note—
For information regarding property transfers
under this section following winding up of a body corporate, see Gazette No
103 of 24.8.2007, p 5962 (surplus property of Society of St Gerard Majella
transferred to Trustees of the Roman Catholic Church for the Diocese of
Parramatta). From April 2021, PCO is no longer updating notes in provisions of
in force titles about related gazette notices. To search for related gazette
notices, please use the Gazette Search functionality.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
24Vesting of assets after winding up of body
corporate
(1)
To the extent to which any assets:
(a)
are given to a body corporate that has been wound
up under this Act, or to a person for the benefit of that body corporate,
or
(b)
are payable to, or recoverable by, the body
corporate or any person on behalf of the body
corporate,
by or under an instrument that takes effect on or after
the date on which the body corporate is wound up, a reference in the
instrument to the body corporate is to be treated as a reference to the Bishop
of the relevant Diocese.
(2)
In this section:
instrument means an
instrument (other than this Act) that creates, modifies, or extinguishes
rights or liabilities (or would do so if lodged, filed or registered in
accordance with any law), and includes any will or any judgment, order or
process of a court or tribunal.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
25Application to Court
The Bishop of the relevant Diocese, or any other
interested person who has leave of the Court, may apply to the Court:
(a)
to determine any question arising in the winding
up of a body corporate under this Act, or in the application by section 22 of
provisions of the Corporations Act 2001 of the
Commonwealth to the winding up, or
(b)
to exercise all or any of the powers that the
Court might exercise if the body corporate were being wound up by the
Court.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
26Amendment of Act following winding up
The Governor may, by proclamation published on
the NSW legislation website, amend sections 2 and 4, or Schedule 2, as the
case requires, to omit the corporate name of a body corporate that has been
wound up under this Act and the canonical name of the relevant
community.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
s 26: Ins 2001 No 11,
Sch 1 [10] (am 2001 No 34, Sch 4.56 [1]–[4]). Am 2009 No 56, Sch 4.59
[1].
27Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this Act.
ss 20–27: Ins
2001 No 11, Sch 1 [10] (am 2001 No 34, Sch 4.56
[1]–[4]).
s 27: Ins 2001 No 11,
Sch 1 [10] (am 2001 No 34, Sch 4.56 [1]–[4]).