Part II
-
Provisions relating to the carrying on of banking business
Division 2
-
Protection of depositors
Subdivision A
-
General provisions relating to depositor protection
SECTION 13C
Banking Act statutory managers
-
termination of control
Conditions necessary for termination of control
(1)
If APRA assumes control of a body corporate
'
s business or appoints an administrator of a body corporate
'
s business, APRA must ensure that either it or an administrator of the body corporate
'
s business has control of the body corporate
'
s business until:
(a)
APRA considers that it is no longer necessary for it or an administrator to remain in control of the body corporate
'
s business; or
(b)
APRA has applied for the body corporate to be wound up.
A termination of control that is permitted under this section is called an
ultimate termination of control
.
Note:
This provision does not prevent a change, or changes, between control of a body corporate
'
s business by APRA and an administrator or between administrators.
History
S 13C(1) substituted by No 10 of 2018, s 3 and Sch 1 item 79, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA. S 13C(1) formerly read:
(1)
Conditions necessary for termination of control
If APRA assumes control of an ADI
'
s business or appoints an administrator of an ADI
'
s business, APRA must ensure that either it or an administrator of the ADI
'
s business has control of the ADI
'
s business until:
(a)
the following conditions are satisfied:
(i)
the ADI
'
s deposit liabilities in Australia have been repaid or APRA is satisfied that suitable provision has been made for their repayment; and
(ii)
APRA considers that it is no longer necessary for it or an administrator to remain in control of the ADI
'
s business; or
(b)
APRA considers that the ADI is insolvent and is unlikely to be returned to solvency within a reasonable time, and APRA has applied for the ADI to be wound up under the
Corporations Act 2001
(see section 14F).
A termination of control that is permitted under this section is called an
ultimate termination of control
.
Note:
This provision does not prevent a change, or changes, between control of an ADI
'
s business by APRA and an administrator or between administrators.
(2)
Events to precede termination
Before making an ultimate termination of control by a Banking Act statutory manager of a body corporate
'
s business, APRA must:
(a)
ensure that directors of the body corporate have been appointed or elected under the body corporate
'
s constitution at a meeting called by the Banking Act statutory manager in accordance with the body corporate
'
s constitution; or
(b)
appoint directors of the body corporate by instrument in writing; or
(c)
ensure that a liquidator for the body corporate has been appointed.
History
S 13C(2) amended by No 10 of 2018, s 3 and Sch 1 items 80
-
84, by substituting
"
a Banking Act statutory manager of a body corporate
'
s business
"
for
"
an ADI statutory manager of an ADI
'
s business
"
,
"
of the body corporate
"
for
"
of the ADI
"
,
"
the body corporate
'
s
"
for
"
the ADI
'
s
"
(wherever occurring) and
"
Banking Act statutory manager
"
for
"
ADI statutory manager
"
in para (a), and
"
the body corporate
"
for
"
the ADI
"
in para (b) and (c), effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
(3)
Power to terminate control
If the requirements in subsections (1) and (2) are satisfied, APRA may by instrument in writing make an ultimate termination of control of a body corporate
'
s business by a Banking Act statutory manager.
History
S 13C(3) amended by No 10 of 2018, s 3 and Sch 1 item 85, by substituting
"
a body corporate
'
s business by a Banking Act statutory manager
"
for
"
an ADI
'
s business by an ADI statutory manager
"
, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
(4)
If the Banking Act statutory manager at the time of the termination is an administrator, the instrument of termination also operates as a termination of the appointment of the administrator. A copy of the instrument must be given to the administrator. However, mere failure to give the copy to the administrator does not affect the termination of the appointment.
History
S 13C(4) amended by No 10 of 2018, s 3 and Sch 1 item 86, by substituting
"
the Banking Act statutory manager
"
for
"
the ADI statutory manager
"
, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
(5)
Period of director
'
s appointment
If a director is elected or appointed under subsection (2), the director takes office on the termination of the Banking Act statutory manager
'
s control of the body corporate
'
s business. If the director was appointed by APRA, the director holds office until the body corporate
'
s next annual general meeting, subject to any terms and conditions imposed by APRA on the director
'
s appointment. If the director was appointed or elected under the body corporate
'
s constitution, the constitution governs the appointment.
Note:
For further information about what happens when a Banking Act statutory manager is in control of a body corporate
'
s business, see Subdivision
B
.
History
S 13C(5) amended by No 10 of 2018, s 3 and Sch 1 items 87
-
89, by substituting
"
the Banking Act statutory manager
'
s
"
for
"
the ADI statutory manager
'
s
"
,
"
the body corporate
'
s
"
for
"
the ADI
'
s
"
(wherever occurring) and
"
a Banking Act statutory manager is in control of a body corporate
'
s business
"
for
"
an ADI statutory manager is in control of an ADI
'
s business
"
in the note, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
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