Banking Act 1959

Part II - Provisions relating to the carrying on of banking business  

Division 2 - Protection of depositors  

Subdivision B - Provisions dealing with control of a body corporate ' s business by a Banking Act statutory manager  

SECTION 14AB   Considering report before acting under section 14AA  

Getting and considering report on fair value of shares or rights

(1)    
Before determining terms for an act under subsection 14AA(1) , the Banking Act statutory manager must:

(a) obtain a report meeting the requirements in subsection (2) of this section on the fair value of the shares or rights concerned from an expert who is not an associate of the Banking Act statutory manager, or of the company, under Division 2 of Part 1.2 of the Corporations Act 2001 ; and

(b) consider the report;

unless APRA determines under subsection (8) that this subsection does not apply in relation to that act relating to those shares or rights.

Content of report

(2)    
The report must set out:

(a) the amount that is, in the expert ' s opinion, the fair value for each share or right concerned; and

(b) the reasons for forming the opinion; and

(c) any relationship between the expert and any of the following persons:

(i) the Banking Act statutory manager;

(ii) a person who is an associate of the Banking Act statutory manager under Division 2 of Part 1.2 of the Corporations Act 2001 ;

(iii) the body corporate;

(iv) a person who is an associate of the body corporate under Division 2 of Part 1.2 of the Corporations Act 2001 ;

including any circumstances in which the expert gives them advice, or acts on their behalf, in the proper performance of the functions attaching to the expert ' s professional capacity or business relationship with them; and

(d) any financial or other interest of the expert that could reasonably be regarded as being capable of affecting the expert ' s ability to give an unbiased opinion in relation to the matter being reported on.

Determining fair value of shares

(3)    
In determining for the purposes of paragraph (2)(a) the amount that is, in the expert ' s opinion, the fair value for each share concerned, the expert must:

(a) first, assess the value of the company as a whole, in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of the company; and

(b) then allocate that value among the classes of shares in the company that either have been issued or that the Banking Act statutory manager proposes to issue (taking into account the relative financial risk, and voting and distribution rights, of the classes); and

(c) then allocate the value of each class pro rata among the shares in that class that either have been issued or that the Banking Act statutory manager proposes to issue (without allowing a premium or applying a discount for particular shares in that class).

Assumptions for valuation of company

(4)    
The Minister may give the expert written notice of assumptions for the valuation of the company. The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions. A notice under this subsection is not a legislative instrument.

Determining fair value of rights

(5)    
In determining for the purposes of paragraph (2)(a) the amount that is, in the expert ' s opinion, the fair value for each right concerned, the expert must act in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of the right.

Assumptions for valuation of rights

(6)    
The Minister may give the expert written notice of assumptions for the valuation of the rights concerned. The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions. A notice under this subsection is not a legislative instrument.

Contravention does not invalidate act

(7)    
A contravention of subsection (1), (2), (3), (5) or (9) does not affect the validity of anything done under section 14AA .

Exemption from subsection (1)

(8)    

APRA may determine in writing that subsection (1) does not apply in relation to an act relating to shares or rights if APRA is satisfied that delaying the act to enable compliance with that subsection in relation to the act would detrimentally affect:

(a) depositors with:

(i) if the company is an ADI - the ADI; or

(ii) if the company is not an ADI - the relevant ADI mentioned in subsection 13A(1B) ; and

(b) financial system stability in Australia.

(9)    
APRA must:

(a) publish a copy of a determination under subsection (8) in the Gazette ; and

(b) give a copy of a determination under subsection (8) to the Banking Act statutory manager concerned (unless that manager is APRA).

(10)    
A determination made under subsection (8) is not a legislative instrument.