Associations Incorporation Act 1981 (Victoria)/Part II

by Government of the State of Victoria, Australia

PART II—INCORPORATION

4 Authority to apply for incorporation

^[1]

(1) Where a majority of the members of an association—

(a) authorize a person who has attained the age of 18 years and who is resident in the State to incorporate the association under this Act;^[2]

(b) approve a proposed statement of purposes of the proposed incorporated association; and

(c) approve proposed rules of the proposed incorporated association that comply with section 6 or approve the adoption of the model rules as the rules of the proposed incorporated association—

that person may make application to the Registrar for the incorporation of the association and perform all such acts and do all such things as may be necessary for securing the incorporation of the association under this Act, notwithstanding anything to the contrary which may be contained in the constitution or rules (if any) of the association.

(2) A majority of the members of an association shall be deemed to have given the authority and approvals referred to in subsection (1) if, at a meeting of the association of which not less than 21 days notice has been given to all members of the association a majority of the votes cast at that meeting, whether personally or, where proxies are allowed, by proxy, are votes in favour of a motion to give that authority and those approvals.^[3]

5 Application for incorporation

^[4]

An application for the purposes of section 4 shall be in the form approved by the Registrar and—

(a) shall state—

(i) the proposed name of the incorporated association, being a name under which an association may be incorporated in accordance with section 12;

(ii) the place or places where the association was formed and is carried on;^[5]

(iii) the name and address in Victoria of the applicant; and

(iv) such other particulars as are prescribed;

(b) shall be accompanied by a copy of the statement of purposes of the proposed incorporated association that has been approved by the association;^[6]

(c) shall be accompanied by—^[7]

(i) a copy of the proposed rules of the proposed incorporated association, being rules that comply with section 6 and have been approved by the association;

(ii) a statement that the association has approved the adoption of the model rules as the rules of the proposed incorporated association; or

(iii) a statement that the association has approved the adoption of the model rules as the rules of the proposed incorporated association with the changes specified in the statement;

(d) shall be accompanied by particulars of any trusts relating to the association and a copy of any deed or other instrument creating or embodying those trusts;

(e) shall include a statement from the applicant certifying that—^[8]

(i) the applicant has the authority under section 4 to make the application on behalf of the association; and

(ii) the particulars contained in the application are true and correct; and v

(iii) copies of any documents accompanying the application are true copies of those documents; and

(f) shall be accompanied by the prescribed fee.

6 Rules of association

The rules of an incorporated association or proposed incorporated association comply with this section if— (a) they make provision, subject to and in accordance with this Act, whether by the adoption of the model rules or otherwise, for—

(i) the several matters that are specified in the Schedule; and

(ii) such other matters (if any) as are prescribed; and

(b) they are divided into paragraphs which are designated by letters in alphabetical order or are numbered consecutively.

7 Certificate of incorporation

^[9]

(1) Subject to subsection (2), if an application is made in accordance with section 5, the Registrar must grant a certificate of incorporation of the association in the form approved by the Registrar and containing the prescribed particulars.^[10]

(2) The Registrar may refuse to incorporate an association or proposed association if the Registrar is satisfied that incorporation of the association or proposed association under this Act would be inappropriate or inconvenient—

(a) by reason of the Registrar's assessment of—

(i) the likely scale or nature of the activities of the association or proposed association; or

(ii) the likely value or nature of the property of the association or proposed association; or

(iii) the extent or nature of the dealings which the association or proposed association has, or is likely to have, with the public; or

(b) for any other prescribed reason.

(3) The Registrar must notify the applicant in writing of a decision to refuse to grant a certificate of incorporation and the reasons for that refusal.

(4) The person who made the application to the Registrar under section 5 may within 28 days after receiving notice of a decision of the Registrar to refuse to grant a certificate of incorporation apply to the Tribunal for review of the decision.^[11]

8 Vesting of property

(1) Upon the granting of a certificate of incorporation of an association, all property held by a person on trust or otherwise for or on behalf of the association or for any of its purposes is, subject to this section, vested in the incorporated association.

(2) Where property vests in an incorporated association under this section—

(a) the incorporated association shall not, except as provided by this Act, deal with the property contrary to the provisions of any trust affecting the property immediately before the incorporation of the association;

(b) the persons who immediately before the property was so vested held the property on trust are not, after the property has been delivered or transferred to the incorporated association, liable or accountable for the property and are not bound to see to the application, distribution or appropriation of the property; and

(c) the property is so vested subject to any restriction, limitation, mortgage, charge, encumbrance, lien, lease, covenant, contract or liability to which the property was subject immediately before it was so vested.^[12]

(3) The receipt of the public officer of an incorporated association is sufficient discharge to a trustee delivering or transferring property to the incorporated association under this section as to the property delivered or transferred.

9 Application for making of recordings in the Register

(1) Where—^[13]

(a) land under the operation of the Transfer of Land Act 1958 vests in an incorporated association by reason of the operation of section 8(1) of this Act; and

(b) the registered proprietor has not executed an instrument as directed by section 59 of the Transfer of Land Act 1958 giving effect to that vesting—

the incorporated association may make an application in the prescribed form to the Registrar for the making of any recordings in the Register that are necessary or expedient in consequence of the vesting of land in the incorporated association.

(2) An application under subsection (1) shall be accompanied by—

(a) the certificate of, or other evidence of, incorporation of the incorporated association;

(b) a declaration by the public officer of the incorporated association to the effect that the land is held in trust for or on behalf of the incorporated association or for any of its purposes;

(c) the certificate of title;^[14] and

(d) the prescribed fee.

(3) If—^[15]

(a) land that is not under the Transfer of Land Act 1958 vests in an incorporated association by reason of the operation of section 8(1) of this Act; and

(b) the person who, immediately before the land so vested, held the land has not executed a conveyance of that land to the incorporated association—

the incorporated association may make an application under Part II of the Transfer of Land Act 1958 to bring the land under that Act by the creation of a folio of the Register in respect of the land and that Part applies to an application under that Part except to the extent that this section provides for matters in that Part.

(4) An application under subsection (3) for bringing land under the operation of the Transfer of Land Act 1958 shall be accompanied by—

(a) the certificate of, or other evidence of, incorporation of the incorporated association;

(b) a declaration by the public officer of the incorporated association to the effect that the land is held in trust for or on behalf of the incorporated association or for any of its purposes;

(c) any documents or evidences of title to the land that are in the possession or under the control of the incorporated association; and

(d) the prescribed fee.

(5) Where an application is made under subsection (1) or (3) to the Registrar, the Registrar shall cause notice of the application to be given—

(a) by publication at least once in a newspaper circulating generally in the State; and

(b) personally or by post to each person who appears from the Register to be affected by the application.^[16]

(6) A notice under this section shall specify a time (being not less than 30 days) after the expiration of which the Registrar may, unless a caveat is lodged forbidding such action, make the recordings referred to in subsection (1) or bring the land under the operation of the Transfer of Land Act 1958 as the case may be.^[17]

(7) A person claiming any estate or interest in the land to which an application under subsection (1) or (3) relates may, before the making of the recordings referred to in subsection (1) or the creation of the folio of the Register, as the case may be, lodge a caveat with the Registrar in the form or to the effect of the prescribed form forbidding the making of the recordings or the bringing of the land under the Transfer of Land Act 1958.^[18]

(8) The Registrar upon lodgment of a caveat under subsection (7) shall notify the applicant of the caveat and shall not proceed with the application until the caveat has been withdrawn or has lapsed as provided in subsection (10) or until a judgment or order in the matter has been obtained from the Supreme Court.

(9) The applicant may, if he thinks fit, summon the caveator to attend before the Supreme Court to show cause why any caveat lodged under subsection (7) should not be removed and the Supreme Court may make such order in the matter either ex parte or otherwise and as to costs as the Supreme Court thinks fit.

(10) After the expiration of 30 days after the lodgment of a caveat, the caveat shall be deemed to have lapsed unless the caveator has within that time commenced proceedings in a court of competent jurisdiction to establish his title to the estate or interest specified in the caveat and has given written notice thereof to the Registrar or has obtained and served on the Registrar an injunction or order of the Supreme Court restraining him from making the recordings referred to in subsection (1) or bringing the land under the Transfer of Land Act 1958.^[19]

(11) A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest.

(12) In this section Registrar means the Registrar of Titles under the Transfer of Land Act 1958 and includes any Deputy Registrar of Titles and any Assistant Registrar of Titles.

(13) Subject to this Act, the Transfer of Land Act 1958 applies to an application made under this section and so applies as if the application were an instrument within the meaning of that Act.

10 Application to bring companies etc. under this Act

(1) ^[20] A company limited by guarantee within the meaning of the Corporations Act that is taken to be registered in Victoria or a co-operative, society, association, institution or body formed, or incorporated or registered under the Co operatives Act 1996 or the Industrial and Provident Societies Act 1958 or any Act relating to the incorporation, formation or registration of co-operatives, societies, associations, institutions or bodies (whether before or after the commencement of this Act) may apply for incorporation under this Act if—

(a) ^[21] the company, co-operative, society, association, institution or body has—

(i) in the case of a company, passed a special resolution approving the application; or

(ii) in any other case, resolved in accordance with its rules that the application be made;

(b) the purposes of the company, co-operative, society, association, institution or body are purposes for which an incorporated association may lawfully be carried on;^[22] and

(c) the company, co-operative, society, association, institution or body has rules that comply with this Act or, upon incorporation under this Act, that will so comply, whether by reason of the adoption of new rules or the model rules or the alteration of its articles of association or former rules.^[23]

(2) A company, co-operative, society, association, institution or body that intends to make an application under subsection (1) may, notwithstanding anything to the contrary in any other Act, make an alteration of its articles of association or rules, or adopt new rules or the model rules, to have effect from the date on which a certificate of incorporation is granted to it under this Act as if it were an incorporated association and the articles or rules were the rules of an incorporated association.^[24]

(3) ^[25] An application by a company, co-operative, society, association, institution or body under subsection (1) shall be in the form approved by the Registrar and—

(a) shall state—

(i) its proposed name upon incorporation, being a name under which an association may be incorporated in accordance with section 12;

(ii) repealed ^[26]

(iii) the name and address in Victoria of a member who has attained the age of 18 years and who is resident in the State and who has been nominated as the first public officer of the proposed incorporated association;^[27]

(b) ^[28] shall be accompanied by—

(i) its certificate of, or other document evidencing its incorporation, formation or registration;

(ii) a statement of purposes as proposed to be in force upon its incorporation under this Act;

(iii) a copy of its articles of association or rules as proposed to be in force upon its incorporation under this Act, being rules that comply with section 6, or a statement that its rules will be the model rules or the model rules with the changes specified in the statement;^[29]

(iiia) particulars of any trust relating to the company, co-operative, society, institution, association or body and a copy of any deed or other instrument creating or embodying those trusts;^[30]

(iv) the name, address and occupation of each director, or member of its committee or other governing body; and

(v) the prescribed fee;^[31] and

(c) shall contain such other particulars (if any) as are prescribed.

(3A) ^[32] The person nominated as the first public officer of the proposed incorporated association may perform all such acts and do all such things as may be necessary for securing the incorporation of the company, co-operative, society, association, institution or body as an association under this Act, despite anything to the contrary which may be contained in the constitution or rules (if any) of the company, co-operative, society, association, institution or body.

(4) ^[33] Subject to subsection (4A), if an application is made in accordance with this section, the Registrar must— (a) grant a certificate of incorporation under this Act; and

(b) give notice of the grant of the certificate of incorporation—

(i) in the case of the incorporation of a company as an association, to the Australian Securities and Investments Commission;^[34] and

(ii) in the case of the incorporation of a co-operative, society, association, institution or other body, as an association, to the Registrar or other person having responsibilities under an Act in relation to the registration of the co-operative, society, association, institution or other body; and

(c) cause a notice of the grant of the certificate of incorporation to be published in the Government Gazette.

(4A) The Registrar may refuse to incorporate a company, co-operative, society, association, institution or body under this Act if the Registrar is satisfied—^[35]

(a) that the company, co-operative, society, association, institution or body is carried on for the purpose of trading or securing pecuniary profit for its members; or

(b) that that incorporation would be inappropriate or inconvenient by reason of the Registrar's assessment of—

(i) the likely scale or nature of the activities of proposed association; or

(ii) the likely value or nature of the property of the proposed association; or

(iii) the extent or nature of the dealings which the proposed association is likely to have with the public; or

(c) that any other prescribed reason for refusal exists.

(4B) The Registrar must notify the applicant in writing of a decision to refuse to grant a certificate of incorporation and the reasons for that refusal.^[36]

(4C) The person who made the application to the Registrar under this section may within 28 days after receiving notice of a decision of the Registrar to refuse to grant a certificate of incorporation apply to the Tribunal for review of the decision.^[37]

(5) The incorporation of a company, co-operative, society, association, institution or body under this section does not affect the identity of the company, co-operative, society, association, institution or body which shall be deemed to be the same body before and after the incorporation and no act, matter or thing shall be affected or abated by the incorporation and, in particular, any right or claim subsisting by or against the company, co-operative, society, association, institution or body immediately before its incorporation under this section may be continued by or against the incorporated association in its former name or commenced by or against the incorporated association in the name of the incorporated association.^[38]

(6) Section 3(2) applies for the purposes of the interpretation of the reference in subsection (4A) to trading or securing pecuniary profit as if a reference in section 3(2) to an association were a reference to a company, co-operative, society, association, institution or body.^[39]

(7) Sections 8 and 9 apply upon the granting of a certificate of incorporation under this section of a co-operative, society, association, institution or body that immediately before the issue of that certificate was not a body corporate as if a reference in those sections to an association were a reference to the co-operative, society, association, institution or body.^[40]

(8) A reference in this section to a company, co-operative, society, association, institution or body does not include a reference to a trade union registered under the Trade Unions Act 1958.^[41]

11 Incorporation of company etc.

(1) ^[42] Upon the incorporation of a company, co-operative, society, association, institution or body, under section 10—

(a) the company, co-operative, society, association, institution or body shall be dissolved and none of the provisions of the Companies Act 1961 the Corporations Law of Victoria , the Co-operatives Act 1996 or the Industrial and Provident Societies Act 1958 or other Acts relating to its incorporation, formation or registration, as the case may be, shall, after its incorporation under that section, apply to the company, co-operative, society, association, institution or body;^[43]

(b) the Commissioner for Corporate Affairs, Registrar or other person having responsibility for the registration of the company, co-operative, society, association, institution or body under another Act, may cancel that registration;^[44] and

(c) the property of the company, co-operative, society, association, institution or body vests in the incorporated association subject to—^[45]

(i) any trust; and

(ii) any restriction, limitation, mortgage, charge, encumbrance, lien, lease, covenant, contract or liability—^[46]

to which the property was subject immediately before it so vested.

(2) Nothing in this section affects the operation in relation to an incorporated association of the provisions of any other Act relating to the registration under that other Act of persons or bodies carrying on business of a particular kind or engaging in other activities of a particular kind.

Footnotes

1. S. 4 amended by No. 10236 s. 4(a).
2. S. 4(1)(a) amended by No. 73/1996 s. 6(1).
3. S. 4(2) inserted by No. 10236 s. 4(b).
4. S. 5 amended by No. 35/2000 s. 3(b).
5. S. 5(a)(ii) repealed by No. 8/2003 s. 4(a). -- NOTE, the edition use to create this text is ambiguous as to whether this footnote applies to this repealed text
6. S. 5(b) amended by No. 8/2003 s. 4(b).
7. S. 5(c) substituted by No. 10236 s. 8(1)(a).
8. S. 5(e) amended by Nos 10236 s. 8(1)(b), 35/2000 s. 3(a), substituted by No. 8/2003 s. 4(c).
9. S. 7 substituted by No. 57/1997 s. 5.
10. S. 7(1) amended by No. 35/2000 s. 3(c).
11. S. 7(4) amended by No. 101/1998 s. 24(2)(a).
12. S. 8(2)(c) amended by No. 10236 s. 8(1)(c).
13. S. 9(1) amended by No. 18/1989 s. 13(Sch. 2 item 5(a)).
14. S. 9(2)(c) substituted by No. 18/1989 s. 13(Sch. 2 item 5(b)).
15. S. 9(3) amended by Nos 69/1987 s. 4, 18/1989 s. 13(Sch. 2 item 5(c)), substituted by No. 85/1998 s. 24(Sch. item 5).
16. S. 9(5)(b) amended by No. 18/1989 s. 13(Sch. 2 item 5(d)).
17. S. 9(6) amended by No. 18/1989 s. 13(Sch. 2 item 5(e)).
18. S. 9(7) amended by No. 18/1989 s. 13(Sch. 2 item 5(f)(i)(ii)).
19. S. 9(10) amended by No. 18/1989 s. 13(Sch. 2 item 5(g)).
20. S. 10(1) amended by Nos 9761 s. 3,14/1995 ss 4, 5, 84/1996 s. 467(Sch. 6 item 3.1), 57/1997 s. 6(4)(a)(b), 44/2001 s. 3(Sch. item 7.1).
21. S. 10(1)(a) amended by No. 57/1997 s. 6(4)(a).
22. S. 10(1)(b) amended by No. 57/1997 s. 6(4)(a).
23. S. 10(1)(c) amended by No. 57/1997 s. 6(4)(a).
24. S. 10(2) amended by No. 57/1997 s. 6(4)(a).
25. S. 10(3) amended by Nos 57/1997 s. 6(4)(a), 35/2000 s. 3(b).
26. S. 10(3)(a)(ii) repealed by No. 8/2003 s. 5.
27. S. 10(3)(a)(iii) amended by No. 73/1996 s. 6(1).
28. S. 10(3)(b) amended by No. 9940 s. 2(a)(b).
29. S. 10(3)(b)(iii) substituted by No. 10236 s. 8(1)(d).
30. S. 10(3)(b)(iiia) inserted by No. 10236 s. 8(1)(e), amended by No. 57/1997 s. 6(4)(a).
31. S. 10(3)(b)(v) inserted by No. 9940 s. 2(b).
32. S. 10(3A) inserted by No. 57/1997 s. 6(1).
33. S. 10(4) substituted by No. 57/1997 s. 6(2).
34. S. 10(4)(b)(i) amended by No. 35/2000 s. 4.
35. S. 10(4A) inserted by No. 57/1997 s. 6(2).
36. S. 10(4B) inserted by No. 57/1997 s. 6(2).
37. S. 10(4C) inserted by No. 57/1997 s. 6(2), amended by No. 101/1998 s. 24(2)(a).
38. S. 10(5) amended by No. 57/1997 s. 6(4)(a).
39. S. 10(6) amended by No. 57/1997 s. 6(3)(4)(a).
40. S. 10(7) amended by No. 57/1997 s. 6(4)(a).
41. S. 10(8) amended by No. 57/1997 s. 6(4)(a).
42. S. 11(1) amended by No. 57/1997 s. 6(4)(a).
43. S. 11(1)(a) amended by Nos 9761 s. 3, 14/1995 ss 4, 5, 84/1996 s. 467(Sch. 6 item 3.2), 57/1997 s. 6(4)(a).
44. S. 11(1)(b) amended by No. 57/1997 s. 6(4)(a).
45. S. 11(1)(c) amended by No. 57/1997 s. 6(4)(a).
46. S. 11(1)(c)(ii) amended by No. 10236 s. 8(1)(f).