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17 1989

BUILDING SOCIETIES ACT, 1989

PART XIII

Miscellaneous

Financial year of a society.

113. —(1) The financial year of a building society shall be the period of 12 months ending on a 31st day of December.

(2) The initial financial year of a society shall be such period as expires with the end of the calendar year in which it is formed and the final financial year of a society shall be such shorter period than 12 months as expires with the date to which the society makes up its final accounts.

Liability of officer.

114. —(1) Any provision (whether contained in the rules of a building society or in any contract with a society or otherwise) for exempting an officer or auditor of a society from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust of which he may be guilty in relation to the society shall, subject to subsection (2), be void.

(2) A society may indemnify such officer or auditor against any liability incurred by him in defending proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted, or in connection with any application under section 115 in which relief is granted to him.

Court's power to grant relief to an officer of a society.

115. —(1) Where in any proceedings for negligence, default, breach of duty or breach of trust against an officer or auditor of a building society it appears to the court hearing the case that that officer or auditor is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he acted honestly and reasonably and that, having regard to all the circumstances of the case (including those connected with his appointment), he ought fairly to be excused for the negligence, default, breach of duty or breach of trust that court may relieve him (either wholly or partly) from his liability on such terms as the court may think fit.

(2) Where an officer or auditor of a society has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court for relief, and the Court on any such application shall have the same power to relieve him as it would have had under this section if it had been a court before which proceedings against that person for such negligence, default, breach of duty or breach of trust had been brought.

(3) Where any case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant ought under that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.

Provisions as to evidence.

116. —(1) A certificate of incorporation or of registration or other document relating to a building society, purporting to be signed by an authorised officer of the Central Bank, or by the Registrar of Building Societies under the repealed enactments, shall, in the absence of any evidence to the contrary, be deemed to have been issued by the Central Bank, or the Registrar as the case may be and shall be received in evidence accordingly.

(2) A printed document purporting to be a copy of the memorandum or rules of a society and certified by an officer of the society to be a true copy of its registered memorandum or rules shall, in the absence of any evidence to the contrary, be deemed to be a true copy of its memorandum or rules and shall be received in evidence accordingly.

Form of registers, records, etc.

117. —(1) A building society shall maintain, in addition to the records required to be kept by a society by virtue of section 76 , such other records as may be specified by the Central Bank.

(2) Any register or record required to be kept by or under this Act may be kept either by making entries in bound books or by recording the matters in question in any other manner provided such recording is readily accessible and readily convertible into written form in an official language of the State.

(3) Any duty imposed by this Act to allow inspection of, or to furnish a copy of, a record, or any part of it, is to be treated as a duty to allow inspection of, or to furnish, a reproduction of the recording or of the relevant part of it in a written form in an official language of the State.

(4) Where any register or record required to be kept by or under this Act is not kept by making entries in a bound book but by some other means, adequate precautions shall be taken by the person required to keep the register or record for guarding against falsification and for facilitating the discovery of any such falsification.

(5) The Central Bank may, from time to time, specify the form of any application, notice or other document required to be made or sent to it under this Act.

(6) Without prejudice to any other provision of this Act, the Central Bank may fix fees to be paid for the inspection of any document or the furnishing of any copies in its custody or in connection with the exercise by it of any of its functions under this Act and any moneys so received by it shall be paid into the general fund of the Bank.

Exemption from stamp duty.

118. —(1) Stamp duty shall not be chargeable on any instrument effecting the transfer of a share in a building society.

(2) Stamp duty, other than stamp duty provided for in sections 67 to 75 of the Finance Act, 1973, shall not be chargeable on any transfer, conveyance or other instrument executed for the purposes of effecting an amalgamation of societies or a transfer of engagements under Part X or the conversion of a society into a public limited company under Part XI .

Offences.

119. —(1) (a) A building society or a person that—

(i) has obtained an authorisation through false statements or any other irregular means,

(ii) contravenes section 17 , 18 (3), 25 or 41 ,

(iii) commits by act or omission a breach of a condition duly imposed on an authorisation under section 17 or an approval to exercise a power under section 36 , or

(iv) fails to comply with a direction under section 40 , the Fourth Schedule or section 42 or a requirement under section 39 ,

shall be guilty of an offence and shall be liable—

(I) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 12 months or both, or

(II) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 5 years or both.

(b) If the contravention, breach or failure in respect of which the society or any person was convicted under paragraph (a) is continued after conviction, it or he shall be guilty of a further offence on every day on which the contravention, breach or failure continues and for each such offence the society or person shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £5,000 instead of the penalty specified for the original contravention, breach or failure.

(2) A society or a person that contravenes a requirement of or under this Act shall be guilty of an offence.

(3) (a) A society or any person guilty of an offence under subsection (2), or guilty of an offence under any other provision of this Act for which no penalty is specifically provided, shall be liable—

(i) on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 12 months or to both; or

(ii) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 3 years or to both.

(b) If the contravention in respect of which a society or person was convicted under paragraph (a) is continued after the conviction it or he shall be guilty of a further offence on every day on which the contravention continues and for each such offence the society or person shall be liable on summary conviction, to a fine not exceeding £50 or, on conviction on indictment, to a fine not exceeding £1,000, instead of the penalty specified for the original contravention.

(4) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Director of Public Prosecutions or the Central Bank.

(5) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 3 years from the date of the offence.

(6) Where an offence under this Act committed by a society or other body corporate or by a person purporting to act on behalf of the society or other body corporate is proved to have been so committed with the consent, or connivance of, or to be attributable to, or to have been facilitated by, any neglect on the part of any officer or employee of that society or body, that person shall be guilty of the offence.

Furnishing false information, etc.

120. —(1) A person who, in purported compliance with any provision of this Act or any regulation thereunder, provides an answer or explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false, or recklessly provides an answer or explanation, makes a statement or produces, lodges or delivers any such document false in a material particular shall be guilty of an offence.

(2) Where a person is guilty of an offence under subsection (1) and the Court is of opinion that any act, omission or conduct which constituted that offence has—

(a) substantially contributed to a society being unable to pay its debts,

(b) prevented or seriously impeded the orderly winding up of the society, or

(c) substantially facilitated the defrauding of the creditors of the society or creditors of any other person,

that person shall be liable on conviction on indictment to a fine not exceeding £50,000 or to imprisonment for a term not exceeding 7 years or to both.

(3) (a) An officer of a society who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of any record or document affecting or relating to the property or affairs of the society, or makes or is privy to the making of a false entry therein, shall, unless he proves that he had no intention to defeat the law, be guilty of an offence.

(b) Any such person as is mentioned in paragraph (a) who fraudulently parts with, alters or makes an omission in any such record or document, or who is privy to the fraudulent parting with, altering or making of an omission in any such record or document, shall be guilty of an offence.

(4) Where a person is guilty of an offence under subsection (3) that person shall be liable on conviction on indictment to a fine not exceeding £50,000 or to imprisonment for a term not exceeding 7 years or to both.

Judgments against a society.

121. —(1) Whenever a person (in this section referred to as a judgment creditor) obtains in any court a judgment, order or decree against a building society for the payment of a sum of money due to the judgment creditor by the society, the registrar or clerk of the court concerned shall notify the Central Bank as soon as may be of the judgment, order or decree and of its terms and of any appeal against the judgment, order or decree and of the result thereof.

(2) Subject to subsection (3), if within the period of 21 days beginning on the date of the judgment, order or decree, the society does not pay all moneys due (or in the case of costs, at the option of the society, give security therefor in lieu of payment) or satisfy all claims under the judgment, order or decree, the society shall be deemed to be unable to meet its obligations to its creditors and, for the purposes of section 109 , to be unable to pay its debts.

(3) If an appeal is instituted in any court against the judgment, order or decree, that court or the court by which the judgment, order or decree was made may by order postpone the application of subsection (2) for such period and, subject to subsection (4), on such terms as the court concerned may fix and specify in the order.

(4) If a court makes an order under subsection (3), it may require the society to which the order relates either, as that court thinks fit, to lodge in court an amount equal to the amount of all moneys due under the judgment, order or decree (or such lesser amount as the court may direct) or to give such security as the court may determine for the payment to the judgment creditor of all such moneys, together with, in either case, such further sum or security for the costs of the appeal as the court shall consider just.

(5) An order under subsection (3) may be varied or revoked by the court that made it or before which an appeal in relation to it is brought.

Public file of a society.

122. —(1) The Central Bank shall prepare and maintain at its head office a file relating to each building society, to be known as the public file of the society, and such file shall contain the documents or, as the case may be, the copies of the documents, and the records of the matters directed by or under this Act to be kept in the public file of the society.

(2) Any member of the public shall be entitled to—

(a) inspect the public file of any society having first given reasonable notice, or

(b) be furnished with a copy of all or any of the documents or records kept in the public file of the society on payment of such fee, if any, as may be determined by the Central Bank.

Subsidy by Minister in respect of interest on housing loans made by a society.

123. —(1) The Minister may, in accordance with a scheme approved by the Minister for Finance, pay, out of moneys provided by the Oireachtas, a subsidy to a building society in respect of interest payable to the society by a member in respect of a housing loan.

(2) A scheme under this section may, without prejudice to the generality of subsection (1), specify—

(a) a class or classes of persons in respect of which a subsidy may be paid by reference to their financial circumstances,

(b) a class or classes of loans in respect of which the subsidy may be paid, or

(c) a class or classes of houses securing the loan in respect of which the subsidy may be paid.

(3) In this section, “housing loan” includes an outstanding loan secured by a mortgage of freehold or leasehold estate or interest in a house under the repealed enactments.

Savings and transitional provisions.

124. —(1) (a) Any order, regulation, rule, agreement, appeal, application, conveyance, decision, lease, loan, mortgage, payment or reference made or any approval, consent or direction given, requirement imposed, certificate or instrument issued, register kept, resolution passed, notice served or any other thing done under any enactment repealed by this Act that could have been made, given, imposed, issued, kept, passed, served or done under a corresponding provision of this Act, shall not be invalidated by any repeal effected by this Act but shall, if in force immediately before that repeal was effected, have effect as if made, given, imposed, issued, kept, passed, served or done (as the case may be) under the corresponding provision of this Act, unless otherwise provided.

(b) Paragraph (a) shall apply to anything done by the Registrar, the Minister or Minister for Finance that could be done by the Central Bank under this Act.

(2) The repeals effected by this Act shall not affect the registration or incorporation of any building society registered or incorporated under an enactment so repealed, and any such registration or incorporation shall be deemed to be a registration or incorporation under this Act.

(3) Where any act or omission is an offence under an enactment repealed by this Act and that enactment provides a penalty for the continuation of the offence, the continuation of the act or omission after the commencement of this section shall be an offence under the provision of this Act which corresponds to the provision of the repealed enactment creating the offence.

(4) A reference in any other enactment or in any document to an enactment repealed by this Act shall, unless the context otherwise requires, be construed as a reference to the corresponding provision of this Act.

(5) A society incorporated under the repealed enactments shall, within a period of 2 years from the commencement of this section—

(a) agree by special resolution on—

(i) the objects of the society,

(ii) whether to adopt any and, if so, what adoptable powers (with or without restrictions), and

(iii) whether to assume and, if so, what restrictions on the extent of its other powers under this Act,

in a memorandum the provisions of which comply with the requirements of Part I of the Second Schedule ;

(b) agree by special resolution on rules so that they conform with this Act and any regulations made thereunder; and

(c) deliver to the Central Bank 3 copies of the memorandum or the rules, as the case may be, each signed by the secretary of the society and accompanied by a statutory declaration by the secretary that the memorandum or rules were agreed by resolution passed as a special resolution and apply to have the memorandum or rules registered.

(6) Subsections (3), (5) and (6) of section 14 shall apply, subject to any necessary modifications, with respect to any document delivered to the Central Bank under subsection (5) (c).

(7) In agreeing on its memorandum or rules under subsection (5), the society shall, subject to subsection (8), determine the date on which the society intends it to take effect and the memorandum or rules is sent to the Central Bank shall be accompanied by a statement specifying that date.

(8) The provisions of a memorandum or rules registered under this section shall take effect on the date specified in subsection (7) or, if registration of the memorandum or rules is not effected until a later date, that later date.

(9) No date shall be specified under subsection (7) in relation to a society's memorandum or rules which falls more than 6 months after the date of the meeting at which the society agreed upon the memorandum or rules, as the case may be.

(10) The rules of a society in force on 21 December, 1988, shall remain in force in respect of that society until the date determined in accordance with subsection (8) but the provisions of this Act, other than Part II of the Second Schedule , shall have effect and the said rules shall be construed accordingly.

(11) An existing director of a society shall be treated for the purposes of section 50 as having been duly elected a director on the date of his election as director or, as the case may be, of his most recent re-election to that office before the commencement of this section.

(12) If the term of office of an existing director would, in accordance with the terms on which he holds office, expire on an earlier date than is provided for by subsection (11), he shall vacate office on that earlier date.

(13) If at the commencement of this section, an existing director has held office since the date of his election or most recent re-election for a period longer than is provided for in section 50 (10), he shall retire from office at the first annual general meeting of the society after the commencement of this section.

Transfer of functions to Central Bank.

125. —(1) From the commencement of this section, proceedings in relation to building societies pending before the Registrar of Building Societies under the Building Societies Acts, 1976 to 1986, shall be transferred to and dealt with by the Central Bank under this Act.

(2) The Registrar shall, on the commencement of this section, to such extent as may be required by the Central Bank, transfer all documents and records relative to building societies in the possession of his office to the Bank.

Amendments to the Bankers' Books Evidence Acts, 1879 and 1959, and the Bills of Exchange Act, 1882.

126. —(1) Section 9 (1) of the Bankers' Books Evidence Act, 1879 (inserted by the Bankers' Books Evidence (Amendment) Act, 1959 ) is hereby amended by the insertion after paragraph (d) of the following—

“(e) a building society (within the meaning of the Building Societies Act, 1989).”.

(2) Section 2 of the Bills of Exchange Act, 1882, is hereby amended by the substitution of the following definition for the definition of “Banker”—

“‘Banker’ includes a body of persons whether incorporated or not who carry on the business of banking and a building society (within the meaning of the Building Societies Act, 1989).”.

Recognition of building society accounts.

127. —(1) A reference in any enactment to the deposit of money or the keeping of an account in a bank shall, unless the context otherwise requires, be construed as including the deposit of money with or the keeping of an account in a building society that is authorised within the meaning of section 17 and the provisions of any such enactment in relation to the rights and obligations of a bank in respect of accounts in a bank shall apply to a building society as they apply to a bank.

(2) Any deposit or account to which subsection (1) relates may be held in the form of a shareholding in the society.