Commonwealth: Cheques Act 1986 (Cth)

Cheques Act 1986 No. 145, 1986 Compilation No. 13 Compilation date: 1 March 2017 Includes amendments up to: Act No. 61, 2016 Registered: 7 March 2017 This compilation includes a commenced amendment made by Act No. 11, 2016 About this compilation This compilation This is a compilation of the Cheques Act 1986 that shows the text of the law as amended and in force on 1 March 2017 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part I—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Application of rules in bankruptcy, laws of States and Territories and rules of the common law 5 Cheques a financial institution draws on itself 6 Certain rights, duties and liabilities under Act may be altered by agreement 7 Application of Act 8 Extension of Act to external Territories 9 Act binds the Crown Part II—Cheques Division 1—Form 10 Cheque defined 11 Order to pay 12 Unconditional order to pay 13 Order addressed to a financial institution 14 Order to pay on demand 15 Order to pay a sum certain 16 Date of cheque etc. 17 Optional stipulations 18 Inchoate instruments Division 2—Order and bearer cheques 19 Meaning of specification of person in cheque as payee or indorsee 20 Cheques either payable to order or to bearer 21 Cheques payable to order 22 Cheques payable to bearer 23 Conversion of cheque payable to bearer into cheque payable to order 24 Cheques payable to order of specified person Division 3—Delivery 25 Delivery essential for drawing or indorsement 26 Requisites for effective delivery 27 Drawing or indorsement may be shown to be ineffective 28 Presumption of effective delivery 29 Delivery of cheque payable to bearer Division 4—Capacity 30 Capacity to incur liability on cheque Division 5—Signature 31 Signature essential to liability on cheque 32 Unauthorised signature 33 Person signing as agent or in representative capacity 34 Procuration signature Division 6—Consideration 35 Valuable consideration defined 36 Presumption of value 37 Holder taking cheque for which value has been given 38 Holder having lien Part III—Negotiability of cheques Division 1—Transfer by negotiation 39 Every cheque transferable by negotiation 40 Transfer of cheque by negotiation 41 Requisites for indorsement 42 Transfer of order cheque without indorsement 43 Indorsement of order cheque payable jointly to 2 or more persons 44 Indorsement where payee or indorsee misdescribed 45 Conditional indorsement 46 Transfer of stale or dishonoured cheque by negotiation 47 Transfer by negotiation back to drawer or indorser 48 Order of indorsements 49 Rights acquired by transfer by negotiation Division 2—Holder in due course 50 Holder in due course defined 51 Presumption that holder is holder in due course 52 Holder deriving title through holder in due course Division 3—Crossings 53 Crossing and crossed cheque defined 54 Effect of crossing on payment of cheque 55 Effect of taking cheque crossed not negotiable 56 Persons who may add crossing to cheque 57 Multiple crossings Part IV—Presentment and dishonour Division 1—Presentment 58 Drawer and indorsers of cheque not liable unless cheque presented 59 When presentment dispensed with 60 Effect of failure to present within reasonable time 61 Due presentment defined 61A Presentment by financial institution 62 External presentment by financial institution 62A Internal presentment by drawee institution 63 Presentment by person other than financial institution 64 Proper place 65 External presentment of cheques by financial institutions—designated places and designated exhibition places 65A Internal presentment of cheques by financial institutions—notified places 66 Deposit institution to present cheques promptly 67 Drawee institution to pay or dishonour promptly 68 How paid cheque to be dealt with Division 2—Dishonour 69 Dishonour defined 70 Drawer and indorsers of cheque liable whether or not given notice of dishonour Division 3—Turnback of cheques drawn on failed financial institutions 70A Certain cheques taken to be dishonoured 70B Consequences of cheque being taken to be dishonoured Part V—Liabilities on cheques Division 1—Liabilities of parties 71 Liability of drawer 72 Estoppel against drawer 73 Liability of indorser 74 Estoppels against indorser 75 Stranger signing cheque liable as indorser 76 Measure of damages on dishonour 77 Transferor by delivery Division 2—Discharge of liabilities of parties 78 When cheque discharged 79 Payment in due course 80 Renunciation of rights against drawer or all persons liable on cheque 81 Cancellation of cheque or drawer's signature 82 Effect of discharge of cheque 83 When indorser discharged 84 Renunciation of rights against indorser 85 Cancellation of indorser's signature 86 Effect of discharge of indorser 87 Effect of payment by drawer or indorser Part VI—Duties and liabilities of financial institutions Division 1—The drawee institution 88 Cheque not assignment of funds 89 Stale cheque 90 Countermand of payment and notice of death or mental incapacity 91 Protection of drawee institution paying improperly raised cheque 92 Protection of drawee institution paying crossed cheque in accordance with crossing 93 Payment of crossed cheque otherwise than in accordance with crossing 94 Protection of drawee institution paying cheque lacking indorsement or with irregular or unauthorised indorsement Division 2—The collecting institution 95 Protection of institution collecting cheque for customer or another institution 96 Rights of institution collecting order cheque not indorsed by payee Part VII—Special provisions relating to FCA institutions and agency cheques Division 1—Presentment and collection of cheques by FCA institutions 97 FCA institution to ensure cheques presented promptly 98 Protection of FCA financial institution collecting cheque for customer 99 Rights of FCA financial institution collecting order cheque not indorsed by payee Division 2—Agency cheques 100 Agency cheques 100A Unauthorised signature Part IX—Miscellaneous 113 Payment of unindorsed order cheque as evidence of receipt by payee 114 Signature 115 Replacement of lost or destroyed cheque 116 Action on lost or destroyed cheque 117 Conflict of laws 118 Dividend warrants 119 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act relating to cheques and certain other negotiable instruments Part I—Preliminary 1 Short title This Act may be cited as the Cheques Act 1986. 2 Commencement This Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation. 3 Interpretation (1) In this Act, unless the contrary intention appears: action includes a counter‑claim and set‑off. agency cheque means a cheque to which subsection 100(2) applies. Note: Under section 100A, subsection 100(2) may, in specified circumstances, apply to a cheque even if the customer's signature on the cheque is not authorised. Australia includes the external Territories. bearer means the person in possession of a cheque payable to bearer. delivery, in relation to a cheque, means the transfer of possession of the cheque from one person to another. drawee institution, in relation to a cheque, means the financial institution on which the cheque is drawn. FCA institution means a body that is: (a) a registered entity under the Financial Sector (Collection of Data) Act 2001; and (b) prescribed for the purposes of this definition. financial institution means: (a) the Reserve Bank of Australia; or (b) a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or (d) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution; or (e) a person (other than a person referred to in paragraph (a), (b) or (d)) who carries on the business of banking outside Australia. holder means: (a) in relation to a cheque payable to order—the payee or an indorsee who is in possession of the cheque as payee or indorsee, as the case may be; and (b) in relation to a cheque payable to bearer—the bearer. issue, in relation to a cheque, means the first delivery of the cheque to a person who takes the cheque as holder. possession, in relation to a cheque, means possession (whether actual or constructive) of the cheque. to or to the order of has the meaning given by subsection (1A). value means valuable consideration as defined by section 35. (1A) For the purposes of this Act, a cheque is payable to or to the order of a person or persons if: (a) it is expressed to be payable: (i) to the person or persons; or (ii) to the order of the person or persons (or words to that effect); or (iii) to the person or persons or to the order of the person or persons (or words to that effect); and (b) it is not also expressed to be payable to bearer. (2) A reference in this Act to an act or thing being done in good faith is a reference to the act or thing being done honestly, whether or not the act or thing is done negligently. (3) Where a person obtains a cheque: (a) by fraud, duress or other unlawful means; or (b) for an illegal consideration; the person's title to the cheque is defective. (4) Subsection (3) shall not be taken to limit by implication the circumstances in which the title of a person to a cheque is defective. (5) Where, at any time, a cheque appears on its face to have been drawn more than 15 months before that time, the cheque is, at that time, a stale cheque. (6) A reference in this Act to a signature or indorsement being written or placed on a cheque without the authority of the person whose signature or indorsement it purports to be includes a reference to the forging of the signature or indorsement. (7) A reference in this Act to a cheque, or a copy of a cheque, being exhibited to a person includes a reference to the cheque or the copy, as the case may be, being delivered to the person. (8) An alteration of a cheque is a material alteration if it alters, in any respect, a right, duty or liability of the drawer, an indorser or the drawee institution. 4 Application of rules in bankruptcy, laws of States and Territories and rules of the common law (1) Nothing in this Act affects the application in relation to cheques of the rules in bankruptcy in force under the Bankruptcy Act 1966 or the law of an external Territory. (2) The laws of the States and Territories and the rules of the common law (including the law merchant), except in so far as they are inconsistent with the express provisions of this Act, continue to apply in relation to cheques. (3) The rules of the common law (including the law merchant) that apply to cheques drawn on banks also apply (by force of this subsection) to cheques drawn on financial institutions other than banks, as if those institutions were banks. 5 Cheques a financial institution draws on itself (1) Subject to subsection (2), a reference in this Act to a cheque includes a reference to a cheque that a financial institution draws on itself. (2) Subsection (1) does not apply to a reference to a cheque in a provision in which a contrary intention appears, or in any of the following provisions: (a) sections 10, 11, 12, 13, 14 and 15; (b) subsection 17(3); (c) subparagraph 59(b)(i); (d) subsections 60(1), 62(12) and 62A(8); (e) sections 88, 89, 90 and 91. (3) Nothing in this Act (other than section 92, subsection 93(2) and section 94) is to be taken to affect any liability that, but for this Act, a financial institution would have in relation to a cheque drawn by it on itself. (4) A reference in subsection (1) or (3) to a cheque drawn by a financial institution on itself is a reference to an instrument that would be a cheque if the drawer and drawee were not the same person. 6 Certain rights, duties and liabilities under Act may be altered by agreement (1) Subject to subsection (2), nothing in this Act shall be taken to prevent 2 or more persons negating, inverting or otherwise altering, by agreement, their rights, duties and liabilities in relation to one another under this Act. (2) Section 5, this section and sections 7 to 16 (inclusive), 19 to 24 (inclusive), 30 to 32 (inclusive), 39 to 41 (inclusive), 43 to 45 (inclusive), 53 to 57 (inclusive), 61, 61A, 62, 62A, 64 to 67 (inclusive), 79, 88, 90 to 95 (inclusive), 97, 98, 100, 115 and 116 have effect notwithstanding any agreement to the contrary. 7 Application of Act (1) This Act applies only in relation to cheques drawn on or after the day on which this Act comes into operation. (2) Where a cheque is dated, the cheque shall be conclusively presumed, for the purposes of subsection (1), to have been drawn on that day. (3) Where a cheque is undated, the cheque shall, unless the contrary is proved, be presumed, for the purposes of subsection (1), to have been drawn on or after the day on which this Act comes into operation. (4) Where the drawer of an instrument that is signed, but is otherwise wanting in a material particular necessary for the instrument to be, on its face, a complete cheque, delivers the instrument to another person, on or after the day on which this Act comes into operation, in order that the instrument may be filled up as a complete cheque, this Act applies in relation to the filling up of the instrument. 8 Extension of Act to external Territories This Act extends to every external Territory. 9 Act binds the Crown This Act binds the Crown in each of its capacities. Part II—Cheques Division 1—Form 10 Cheque defined (1) A cheque is an unconditional order in writing that: (a) is addressed by a person to another person, being a financial institution; and (b) is signed by the person giving it; and (c) requires the financial institution to pay on demand a sum certain in money. Note: In this Act, financial institution has a restricted meaning—see the definition in subsection 3(1). (2) An instrument that does not comply with subsection (1), or that orders any act to be done in addition to the payment of money, is not a cheque. 11 Order to pay An order to pay must be more than an authorization or request to pay. 12 Unconditional order to pay (1) An order to pay on a contingency is not an unconditional order to pay and the happening of the event does not make the order an unconditional order to pay. (2) An order to pay shall not be taken not to be an unconditional order to pay by reason only that the order is coupled with either or both of the following: (a) an indication of a particular account to be debited by the financial institution to which the order is addressed; (b) a statement of the transaction giving rise to the order. 13 Order addressed to a financial institution (1) An order to pay is not addressed to a financial institution unless: (a) the order is addressed to a financial institution and to no other person; (b) the order is addressed to one financial institution only; and (c) the financial institution is named, or otherwise indicated with reasonable certainty, in the instrument containing the order. (2) An order to pay may be an order to pay addressed to a financial institution notwithstanding that a person other than the financial institution on which the instrument containing the order is drawn, the payee or the drawer is specified in the instrument. 14 Order to pay on demand (1) Subject to subsections (2) and (3), an order to pay is an order to pay on demand if: (a) the order is expressed to require payment on demand, at sight or on presentation; or (b) no time for payment is expressed in the instrument containing the order. (2) Subject to subsection 16(3), an order to pay is not an order to pay on demand if the order is expressed to require, or requires by implication, payment otherwise than on demand, at sight or on presentation. (3) Without limiting the generality of subsection (2), an order to pay is not an order to pay on demand if the order is expressed to require, or requires by implication, payment only: (a) at or before a particular time; or (b) where the instrument containing the order is presented at or before a particular time. 15 Order to pay a sum certain (1) Subject to subsection (2), an order to pay is not an order to pay a sum certain unless the sum ordered to be paid is specified with reasonable certainty in the instrument containing the order. (2) Where more than one sum is expressed to be payable in an instrument containing an order to pay, the lesser or least, as the case may be, of the sums so expressed to be payable shall be taken to be the only sum ordered to be paid by the instrument. (3) An order to pay may be an order to pay a sum certain notwithstanding that the order requires a sum to be paid according to a rate of exchange specified in, or to be ascertained as directed by, the instrument containing the order. (4) Where an instrument contains: (a) an order to pay a specified sum; and (b) an order to pay not more than a specified sum; the instrument shall be taken to require payment of the lesser of the sums so specified. 16 Date of cheque etc. (1) Where a cheque, or any indorsement of a cheque, is dated, the date shall, unless the contrary is proved, be presumed to be the day on which the cheque was drawn or the indorsement made, as the case may be. (2) A cheque is not invalid by reason only that: (a) it is not dated; (b) it is antedated or post‑dated; or (c) the date it bears is a Sunday. (3) For the purpose of determining whether a post‑dated instrument is a cheque, the fact that the instrument is post‑dated shall be disregarded. (4) A cheque is not incomplete or irregular on its face by reason only that it is post‑dated (whether or not the date has arrived). 17 Optional stipulations (1) The drawer of a cheque may, by an express stipulation written on the cheque, waive, as regards the drawer, the right to presentment of the cheque. (2) An indorser of a cheque may, by an express stipulation written on the cheque: (a) negative or limit the indorser's liability on the cheque; or (b) waive, as regards the indorser, the right to presentment of the cheque. (3) A stipulation written on a cheque, being a stipulation of the kind referred to in subsection (1), shall not be taken to affect the rights, duties and liabilities of the drawer and the drawee institution in relation to one another. 18 Inchoate instruments (1) Where the drawer of an instrument that is signed, but is otherwise wanting in a material particular necessary for the instrument to be, on its face, a complete cheque, delivers the instrument to another person in order that the instrument may be filled up as a complete cheque, any person in possession of the instrument shall be presumed, unless the contrary is proved, to have authority to fill up the instrument as a complete cheque in any way the person sees fit. (2) Subject to subsection (4), an instrument to which subsection (1) applies is not enforceable against the drawer or a person who becomes an indorser of the instrument before the instrument is filled up as a complete cheque unless the instrument is filled up within a reasonable time and strictly in accordance with the authority given. (3) Reasonable time, for the purposes of subsection (2), is a question of fact. (4) An instrument of the kind referred to in subsection (1) that has been filled up as a complete cheque shall, as regards a holder in due course, be conclusively presumed: (a) to have been delivered to another person in order that the instrument might be filled up as a complete cheque; and (b) to have been filled up within a reasonable time and strictly in accordance with the authority given. Division 2—Order and bearer cheques 19 Meaning of specification of person in cheque as payee or indorsee (1) A person shall not be taken to be specified in a cheque as payee or indorsee unless the person: (a) is named, or otherwise indicated with reasonable certainty, in the cheque; and (b) is not a fictitious or non‑existing person. (2) Where the holder for the time being of an office is specified in a cheque as payee or indorsee, the person who is the holder for the time being of the office shall be taken to be named in the cheque as payee or indorsee, as the case may be. 20 Cheques either payable to order or to bearer A cheque is either payable to order or payable to bearer. 21 Cheques payable to order A cheque is payable to order if the cheque is expressed, whether originally or by indorsement, to require the drawee institution to pay the sum ordered to be paid by the cheque to or to the order of: (a) a person specified in the cheque as payee or indorsee; or (b) 2 or more persons specified in the cheque, jointly or in the alternative, as payee or indorsee. 22 Cheques payable to bearer Where a cheque is not payable to order, the cheque: (a) is a cheque payable to bearer; and (b) shall be taken to require the drawee institution to pay the sum ordered to be paid by the cheque to bearer. 23 Conversion of cheque payable to bearer into cheque payable to order (2) Where the only, or the last, indorsement of a cheque requires the drawee institution to pay the sum ordered to be paid by the cheque to bearer, the holder may, using the signature of the indorser, convert the cheque into a cheque payable to order by adding to, or altering, the indorsement so that the cheque is expressed to require the drawee institution to pay the sum ordered to be paid by the cheque to or to the order of: (a) a person specified in the cheque as indorsee; or (b) 2 or more persons specified in the cheque, jointly or in the alternative, as indorsee. 24 Cheques payable to order of specified person Where a cheque is expressed, whether originally or by indorsement, to be payable to the order of a person specified in the cheque as payee or indorsee and not to or to the order of the person, the cheque is nevertheless payable to the person or to the person's order, at the person's option. Division 3—Delivery 25 Delivery essential for drawing or indorsement A contract arising out of the drawing or an indorsement of a cheque is incomplete and revocable until delivery of the cheque. 26 Requisites for effective delivery The delivery of a cheque is not effective to complete a contract arising out of the drawing or an indorsement of the cheque unless the delivery is made by the drawer or indorser, as the case may be, in order to give effect to the drawing or indorsement, as the case may be. 27 Drawing or indorsement may be shown to be ineffective Subject to section 28, the delivery of a cheque by the drawer or an indorser may be shown to have been conditional, or for a special purpose only, and not in order to issue the cheque or transfer it by negotiation, as the case may be. 28 Presumption of effective delivery (1) The drawer of a cheque shall: (a) as regards a holder in due course—be conclusively presumed to have made an effective delivery of the cheque so as to complete the drawer's contract on the cheque; and (b) as regards a holder who is not a holder in due course—be presumed, unless the contrary is proved, to have made an effective delivery of the cheque so as to complete the drawer's contract on the cheque. (2) An indorser of a cheque shall: (a) as regards a holder in due course: (i) where the holder in due course took the cheque from the indorser—be presumed, unless the contrary is proved, to have made an effective delivery of the cheque so as to complete the indorser's contract on the cheque; or (ii) in any other case—be conclusively presumed to have made an effective delivery of the cheque so as to complete the indorser's contract on the cheque; and (b) as regards a holder who is not a holder in due course—be presumed, unless the contrary is proved, to have made an effective delivery of the cheque so as to complete the indorser's contract on the cheque. (3) Nothing in this section affects the operation of subsection 18(1) or (4) in relation to an instrument of the kind referred to in that first‑mentioned subsection. 29 Delivery of cheque payable to bearer Where the holder of a cheque payable to bearer delivers the cheque to another person (whether or not the holder also indorses the cheque), the delivery of the cheque is effective to transfer the cheque by negotiation, whether or not the holder delivered the cheque to the other person in order to transfer the cheque by negotiation. Division 4—Capacity 30 Capacity to incur liability on cheque (1) Capacity to incur liability on a cheque is co‑extensive with capacity to contract. (2) Subsection (1) does not enable a corporation to incur liability on a cheque if, but for that subsection, it would not have capacity to incur liability on the cheque. (3) Where a cheque is drawn or issued by a person who does not have capacity or power to incur liability on a cheque, the cheque is nevertheless a valid cheque. (4) Where a cheque is indorsed by a person who does not have capacity or power to incur liability on a cheque, the indorsement is nevertheless effective as an indorsement of the cheque. Division 5—Signature 31 Signature essential to liability on cheque (1) Subject to this section and section 75, a person is not liable as the drawer or an indorser of a cheque unless the person signs the cheque as the drawer or an indorser, as the case may be. (2) Where a person signs a cheque in the person's business name or trade name or in a name other than the person's own name, the person is liable on the cheque as if the person had signed it in the person's own name. (3) The signature of the name of a firm on a cheque shall be deemed to be the signature, by the person signing, of the names of all persons liable as partners in the firm. (4) Nothing in subsection (1) affects the liability, under any other law of the Commonwealth or under a law of a State or Territory, of a person who signs, issues or authorizes to be signed or issued on behalf of a company a cheque, or an indorsement on a cheque, on which the name of the company does not appear in legible characters. 32 Unauthorised signature (1) Where a signature is written or placed on a cheque as that of the drawer without the authority of the person whose signature it purports to be (in this subsection referred to as the relevant person), the signature is wholly inoperative as that of the relevant person unless: (a) the person against whom it is sought to assert a right on the cheque is estopped from denying the genuineness of the signature or the existence of authority for the signature, as the case requires; or (b) the signature is ratified or adopted by the relevant person; but the signature operates as the signature of the person who wrote or placed it on the cheque in favour of any person who, in good faith and without notice that it had been written or placed on the cheque without the authority of the relevant person, pays the cheque or takes the cheque for value. (2) Subject to sections 74 and 92, subsection 93(2), section 94 and subsections 95(1) and (3) and 98(1), where a signature is written or placed on a cheque otherwise than as that of the drawer without the authority of the person whose signature it purports to be (in this subsection referred to as the relevant person), the signature is wholly inoperative as that of the relevant person unless: (a) the person against whom it is sought to assert a right on the cheque is estopped from denying the genuineness of the signature or the existence of authority for the signature, as the case requires; or (b) the signature is ratified or adopted by the relevant person; but the signature operates as the signature of the person who wrote or placed it on the cheque in favour of any person who, in good faith and without notice that it had been written or placed on the cheque without the authority of the relevant person, pays the cheque or takes the cheque for value. 33 Person signing as agent or in representative capacity (1) Where: (a) a person (in this subsection referred to as the signer) signs a cheque for or on behalf of a principal or in a representative capacity; (b) the signer adds words to the signature indicating that the signer signs for or on behalf of a principal or in a representative capacity; and (c) the person for or on whose behalf the signer signs the cheque is named, or otherwise indicated with reasonable certainty, in the cheque; the signer is not personally liable on the cheque. (2) Where: (a) a person (in this subsection referred to as the signer) signs a cheque and adds words to the signature indicating that the signer signs for or on behalf of a principal or in a representative capacity, but: (i) the signer does not in fact sign for or on behalf of the principal or in the representative capacity, as the case may be; or (ii) the person for or on whose behalf the signer signs the cheque is not named, or otherwise indicated with reasonable certainty, in the cheque; or (b) a person (in this subsection also referred to as the signer) signs a cheque and merely adds words to the signature describing the signer as an agent or as having a representative capacity; the addition of those words does not prevent the signer from being personally liable on the cheque. 34 Procuration signature Where an agent writes or places a signature by procuration on a cheque: (a) the signature operates as notice that the agent has only limited authority to sign for the agent's principal; and (b) the principal is not bound by the signature unless the agent, in signing the cheque, acts within the limits of the agent's actual authority. Division 6—Consideration 35 Valuable consideration defined (1) Valuable consideration for a cheque may be constituted by: (a) any consideration sufficient to support a simple contract; or (b) an antecedent debt or liability. (2) An antecedent debt or liability may constitute valuable consideration for a cheque whether or not the cheque is post‑dated. 36 Presumption of value The drawer and each indorser of a cheque shall, unless the contrary is proved, be presumed to have received value for the cheque. 37 Holder taking cheque for which value has been given Where value has at any time been given for a cheque, the holder shall, as regards the drawer and indorsers who became indorsers before that time, be conclusively presumed to have taken the cheque for value. 38 Holder having lien A holder of a cheque who has a lien on the cheque (whether arising from contract or by operation of law) shall, to the extent of the amount for which the holder has the lien, be conclusively presumed to have taken the cheque for value. Part III—Negotiability of cheques Division 1—Transfer by negotiation 39 Every cheque transferable by negotiation (1) Every cheque may be transferred by negotiation until it is discharged. (2) Subsection (1) has effect in relation to a cheque notwithstanding anything written or placed on the cheque. (3) Without limiting the generality of subsection (2), the crossing of a cheque does not affect the transferability of the cheque by negotiation. (4) Nothing in this section affects the transferability of a cheque otherwise than by negotiation. 40 Transfer of cheque by negotiation (1) The transfer of a cheque by negotiation is the transfer of the cheque from the holder to another person in such manner as to constitute the other person the holder. (2) A cheque payable to order is transferred by negotiation if: (a) it is indorsed by the holder; and (b) the cheque is delivered so as to complete the contract arising out of the indorsement. (3) A cheque payable to bearer is transferred by negotiation if it is delivered by the holder to another person (whether or not the cheque is indorsed by the holder). 41 Requisites for indorsement (1) An indorsement of a cheque is not effective to transfer the cheque by negotiation unless: (a) the indorsement is written or placed on the cheque and signed by the indorser; and (b) the indorsement is an indorsement of the entire cheque. (2) An indorsement written or placed on an allonge to a cheque shall be taken to be written or placed, as the case may be, on the cheque. (3) A mere signature on a cheque is, in point of form, sufficient for an indorsement of the cheque. (4) Without limiting the generality of paragraph (1)(b), an indorsement of a cheque that purports to transfer a part only of the sum ordered to be paid by the cheque is not effective to transfer the cheque by negotiation. 42 Transfer of order cheque without indorsement (1) Where the holder of a cheque payable to order, without indorsing the cheque, delivers the cheque, for value, to another person in order to transfer the cheque by negotiation, the other person, by virtue of the delivery: (a) receives the title that the holder had in the cheque; and (b) acquires the right to have the holder indorse the cheque to the other person. (2) Without limiting the generality of subsection 17(2), where a person is under an obligation by virtue of subsection (1) to indorse a cheque as an agent or in a representative capacity, the person may indorse the cheque in terms negativing the person's own liability on the cheque. 43 Indorsement of order cheque payable jointly to 2 or more persons Where a cheque payable to order is expressed to require the drawee institution to pay the sum ordered to be paid by the cheque jointly to or to the order of 2 or more payees or indorsees who are not partners, all those persons must indorse the cheque in order to transfer the cheque by negotiation unless the person indorsing has, or the persons indorsing between them have, authority to sign for the person, or all the persons, not indorsing the cheque. 44 Indorsement where payee or indorsee misdescribed Where, in a cheque payable to order: (a) the payee or an indorsee is wrongly designated; or (b) the name of the payee or an indorsee is misspelt; the payee or indorsee, as the case may be (in this section referred to as the relevant person), may indorse the cheque in accordance with section 41, but using the designation or spelling in the cheque. The relevant person may also add his or her proper signature, but this is not necessary for the indorsement to be effective. 45 Conditional indorsement Where an indorsement of a cheque purports to be conditional: (a) the indorsement is effective as an indorsement of the cheque, whether or not the condition is fulfilled; (b) a person paying the cheque may disregard the condition and may pay the cheque to the indorsee or a subsequent holder, whether or not the condition is fulfilled; and (c) the fact that the indorsement purports to be conditional shall be disregarded for the purpose of determining whether the holder is a holder in due course. 46 Transfer of stale or dishonoured cheque by negotiation (1) Where a stale cheque is transferred by negotiation to a person, the person: (a) takes the cheque subject to any defect of title affecting the cheque at the time when the cheque became a stale cheque; and (b) does not receive, and is not capable of giving, a better title to the cheque than the title that the person from whom the first‑mentioned person took the cheque had. (2) Where: (a) a cheque that has been dishonoured is transferred by negotiation to a person who takes the cheque with notice of the dishonour; and (b) the cheque is not a stale cheque at the time of the transfer; the person takes the cheque subject to any defect of title affecting the cheque at the time when the cheque was dishonoured. (3) Where a cheque is a stale cheque, every transfer of the cheque by negotiation shall, unless the contrary is proved, be presumed to have been effected before the cheque became a stale cheque. 47 Transfer by negotiation back to drawer or indorser (1) Where a cheque is transferred by negotiation back to the drawer, the drawer: (a) may strike out the indorsements (if any) of the cheque; and (b) may, whether or not the indorsements have been struck out, re‑issue the cheque, but is not entitled to enforce payment against any person to whom the drawer was previously liable. (2) Where a cheque is transferred by negotiation back to an indorser, the indorser: (a) may strike out the indorser's own indorsement and subsequent indorsements (if any); and (b) may, whether or not the indorser's own indorsement and subsequent indorsements have been struck out, further transfer the cheque by negotiation, but is not entitled to enforce payment against any person to whom the indorser was previously liable. 48 Order of indorsements Where there are 2 or more indorsements of a cheque, the indorsements shall, unless the contrary is proved, be presumed to have been made in the order (if any) in which they appear on the cheque. 49 Rights acquired by transfer by negotiation (1) The holder of a cheque may sue on the cheque in the holder's own name. (2) A holder of a cheque who is a holder in due course: (a) holds the cheque free from any defect in the title of prior parties as well as from mere personal defences available to prior parties against one another; and (b) may enforce payment of the cheque against any person liable on the cheque. (3) Where: (a) the title of the holder of a cheque is defective; and (b) the holder transfers the cheque by negotiation to a holder in due course; the holder in due course receives a good and complete title to the cheque. Division 2—Holder in due course 50 Holder in due course defined (1) The holder of a cheque is a holder in due course if: (a) the cheque was transferred by negotiation to the holder and, at the time when the holder took the cheque, the cheque: (i) was complete and regular on the face of it; (ii) was not a stale cheque; and (iii) did not bear a crossing of the kind referred to in paragraph 53(1)(b); and (b) the holder took the cheque: (i) in good faith; (ii) for value; and (iii) without notice: (A) of any dishonour of the cheque; or (B) of any defect in the title of the person who transferred the cheque to the holder or that the person who transferred the cheque to the holder had no title to the cheque. (2) Without limiting the generality of paragraph (1)(b), the holder of a cheque shall, for the purposes of that paragraph, be deemed to have taken the cheque with notice of a defect in the title of the person who transferred the cheque to the holder if the holder took the cheque with notice that the person transferred the cheque to the holder in breach of faith or under circumstances amounting to a fraud. 51 Presumption that holder is holder in due course (1) Subject to subsection (2), the holder of a cheque shall, unless the contrary is proved, be presumed to be a holder in due course. (2) Where, in an action or proceeding on a cheque, it is admitted or proved that the drawing or issue, or a transfer by negotiation, of the cheque is affected by fraud, duress or illegality, the holder shall not be presumed, by virtue of subsection (1), to be a holder in due course unless and until the holder proves that, after the alleged fraud, duress or illegality, value was, in good faith, given for the cheque. 52 Holder deriving title through holder in due course A holder of a cheque (whether or not the holder took the cheque for value) who: (a) derives title to the cheque through a holder in due course; and (b) is not a party to any fraud, duress or illegality affecting the cheque; has, as regards the drawer and the indorsers prior to the holder in due course, all the rights of the holder in due course. Division 3—Crossings 53 Crossing and crossed cheque defined (1) Where a cheque clearly bears across the front of the cheque the addition of: (a) 2 parallel transverse lines; or (b) 2 parallel transverse lines with the words not negotiable between, or substantially between, the lines; the addition is a crossing of the cheque, and the cheque is a crossed cheque. (2) Nothing written or placed on a cheque, other than an addition of a kind referred to in subsection (1), is effective as a crossing of the cheque. (3) Without limiting the generality of subsection (2), the addition of the words not negotiable to a cheque otherwise than between, or substantially between, 2 parallel transverse lines across the front of the cheque is not effective as a crossing of the cheque. 54 Effect of crossing on payment of cheque A crossing of a cheque has effect as a direction by the drawer to the drawee institution not to pay the cheque otherwise than to a financial institution. 55 Effect of taking cheque crossed not negotiable Where a cheque that bears a crossing of the kind referred to in paragraph 53(1)(b) is transferred by negotiation to a person, the person does not receive, and is not capable of giving, a better title to the cheque than the title that the person from whom the first‑mentioned person took the cheque had. 56 Persons who may add crossing to cheque A crossing may be added to a cheque by: (a) the drawer; or (b) any other person in possession of the cheque. 57 Multiple crossings (1) A person in possession of a cheque may add a crossing to the cheque notwithstanding that, when the cheque came into the person's possession, a crossing had already been added to the cheque. (2) A person in possession of a cheque that, when it came into the person's possession, bore across the front of the cheque 2 parallel transverse lines, without the words not negotiable between, or substantially between, the lines, may add those words between, or substantially between, the lines. Part IV—Presentment and dishonour Division 1—Presentment 58 Drawer and indorsers of cheque not liable unless cheque presented Subject to section 59, a person who is the drawer or an indorser of a cheque is not liable on the cheque unless the cheque is duly presented for payment. 59 When presentment dispensed with Presentment of a cheque for payment is dispensed with: (a) where the cheque cannot, with the exercise of reasonable diligence, be duly presented; or (aa) if the drawee institution has become a failed financial institution within the meaning of subsection 70A(2); or (b) as regards the drawer, in the following cases, namely: (i) where: (A) the drawee institution is not, as between the drawer and itself, under an obligation to pay the cheque; and (B) the drawer had no reason to believe, at the time of the issue of the cheque, that the cheque would be paid if duly presented; (ii) where the drawer has, expressly or by implication, waived the right to presentment; or (c) as regards an indorser, where the indorser has, expressly or by implication, waived the right to presentment. 60 Effect of failure to present within reasonable time (1) Where: (a) a cheque is not duly presented for payment within a reasonable time after its issue; (b) the drawee institution becomes insolvent after the issue of the cheque; (c) the drawer is, by reason of the insolvency of the drawee institution, unable to obtain payment from the drawee institution of the whole or a part of funds maintained with the drawee institution to meet the cheque; and (d) the drawer assigns to the holder the drawer's rights against the drawee institution in respect of those funds or that part of those funds, as the case may be; the drawer is not liable on the cheque to the extent of those funds or that part of those funds, as the case may be. (2) Due presentment of a cheque for payment is not effective to render an indorser liable on the cheque unless the presentment is effected within a reasonable time after its indorsement by the indorser. (3) In determining what is a reasonable time for the purposes of subsection (1) or (2), regard shall be had to: (a) the fact that the instrument is a cheque and that it is reasonable to expect a cheque to be presented for payment promptly; (b) usage in relation to the presentment of cheques, including usage of trade and of financial institutions; and (c) the facts of the particular case, including: (i) the nature of the cheque and, in particular, but without limiting the generality of the foregoing, the date of the cheque (if any) and the sum ordered to be paid by the cheque; and (ii) whether any delay in presenting the cheque for payment was: (A) caused by circumstances beyond the control of the holder; and (B) not imputable to default, misconduct or negligence on the part of the holder. 61 Due presentment defined (1) Subject to subsection (2), a cheque is duly presented for payment if a demand for payment of the cheque is made, in accordance with section 62, 62A or 63, on the drawee institution by or on behalf of the holder. (2) Where a demand for payment of a cheque is made before the date of the cheque arrives, the cheque shall not, by reason of the demand, be taken to have been duly presented for payment. 61A Presentment by financial institution A financial institution may present a cheque for payment in either of the following ways: (a) by making an external presentment of the cheque (see section 62); (b) by making an internal presentment of the cheque (see section 62A). 62 External presentment by financial institution (1) A financial institution (the collecting institution) makes an external presentment of a cheque if the collecting institution makes a demand for payment of the cheque on the drawee institution (which is not the same institution as the collecting institution) on behalf of a customer, another financial institution or otherwise and the demand: (a) is made: (i) by exhibiting the cheque to the drawee institution at the proper place in relation to the cheque; and (ii) at a reasonable hour on a day on which the drawee institution is open for business at that place; or (b) is made: (i) by exhibiting the cheque to the drawee institution at a place that is a designated exhibition place in relation to the cheque for the purposes of this subsection; and (ii) at a time that is a designated time for the drawee institution at that place; or (c) is made: (i) otherwise than by exhibiting the cheque; and (ii) at a place that is a designated place in relation to the cheque for the purposes of this subsection; and (iii) at a time that is a designated time for the drawee institution at that place; and (iv) using a means of communication that is a designated means of communication for the drawee institution at that place. Note 1: Section 64 defines proper place. Note 2: Section 65 defines designated exhibition place, designated time and designated means of communication. (3) Where the cheque is not exhibited to the drawee institution, the demand shall: (a) identify the cheque with reasonable certainty; and (b) be in a form that is intelligible to, or readily decipherable by, the drawee institution. (3A) The demand must also specify, in a form that is intelligible to, or readily decipherable by, the drawee institution: (a) a place as the nominated place in relation to the cheque for the purposes of subsection (6); and (b) the days on which, and the hours during which, the collecting institution will be open for business at the place; and (c) the means by which communications may be made to the collecting institution at the place. (4) Without limiting the generality of subsection (3), the demand shall, for the purposes of that subsection, be taken to identify the cheque with reasonable certainty if: (a) the sum ordered to be paid by the cheque; (b) the cheque number; (c) the account against which the cheque is drawn; and (d) the proper place in relation to the cheque; are specified in the demand or are readily ascertainable by the drawee institution from the demand. (4A) A time is a nominated time for the collecting institution at a particular place if the time is covered by the specification in the demand of the days on which, and the hours during which, the collecting institution will be open for business at that place. (4B) A means of communication is a nominated means of communication for the collecting institution at a particular place if the demand specifies the means as a means by which communications may be made to the collecting institution at that place. (5) Where the cheque is not exhibited to the drawee institution, the drawee institution: (a) may request the collecting institution to furnish specified further particulars in relation to the cheque to it; or (b) may, whether or not a request has been made by virtue of paragraph (a), request the collecting institution to exhibit the cheque, or a copy of the cheque of a specified kind, to it. (6) The request must be made: (a) to the collecting institution at a place that is a nominated place in relation to the cheque for the purposes of this subsection; and (b) at a time that is a nominated time for the collecting institution at that place; and (c) using a means of communication that is a nominated means of communication for the collecting institution at that place. Note 1: Subsection (3A) defines nominated place. Note 2: Subsection (4A) defines nominated time. Note 3: Subsection (4B) defines nominated means of communication. (7) The request shall: (a) identify the cheque with reasonable certainty; and (b) be in a form that is intelligible to, or readily decipherable by, the collecting institution. (8) Without limiting the generality of subsection (7), the request shall, for the purposes of that subsection, be taken to identify the cheque with reasonable certainty if: (a) the sum ordered to be paid by the cheque; (b) the cheque number; (c) the account against which the cheque is drawn; and (d) the proper place in relation to the cheque; are specified in the request or are readily ascertainable by the collecting institution from the request. (9) If the drawee institution makes a request in relation to the cheque, the collecting institution must: (a) in the case of a request for further particulars—give the drawee institution those further particulars: (i) at a place that is a designated place in relation to the cheque for the purposes of this subsection; and (ii) at a time that is a designated time for the drawee institution at that place; and (iii) using a means of communication that is a designated means of communication for the drawee institution at that place; or (b) in the case of a request to exhibit the cheque or a copy of the cheque of a specified kind—exhibit the cheque or the copy to the drawee institution: (i) at the proper place in relation to the cheque, at a reasonable hour on a day on which the drawee institution is open for business at that place; or (ii) at a place that is a designated exhibition place in relation to the cheque for the purposes of this subsection, at a time that is a designated time for the drawee institution at that place. Note 1: Section 64 defines proper place. Note 2: Section 65 defines designated exhibition place, designated place, designated time and designated means of communication. (11) In furnishing the further particulars, the collecting institution shall: (a) identify the request with reasonable certainty; and (b) provide the further particulars; in a form that is intelligible to, or readily decipherable by, the drawee institution. (12) Where a cheque is presented for payment otherwise than by exhibiting it to the drawee institution, nothing in this section shall be taken to relieve the drawee institution from any liability to which the drawee institution would have been subject in relation to the cheque if it had been presented by being exhibited to the drawee institution. 62A Internal presentment by drawee institution (1) The drawee institution in relation to a cheque makes an internal presentment of the cheque if: (a) the drawee institution, on behalf of a customer, another financial institution or otherwise, makes a demand for payment of the cheque on itself; and (b) either: (i) the demand is made by exhibiting the cheque to itself at: (A) the proper place in relation to the cheque; or (B) a place that is a notified place in relation to the cheque for the purposes of this subsection; or (ii) the demand is made otherwise than by exhibiting the cheque and is so made at: (A) the proper place in relation to the cheque; or (B) a place that is a notified place in relation to the cheque for the purposes of this subsection. Note 1: Section 64 defines proper place. Note 2: Section 65A defines notified place. (2) If the demand is made: (a) otherwise than by exhibiting the cheque; and (b) at the proper place in relation to the cheque, or at a place that is a notified place for the purposes of subsection (1); the drawee institution may: (c) request itself to exhibit the cheque, or a copy of the cheque of a specified kind, to itself at a specified place; or (d) request itself to provide specified further particulars in relation to the cheque to itself at a specified place. Note 1: Section 64 defines proper place. Note 2: Section 65A defines notified place. (3) The specified place must be: (a) the proper place in relation to the cheque; or (b) a place that is a notified place in relation to the cheque for the purposes of this subsection. Note 1: Section 64 defines proper place. Note 2: Section 65A defines notified place. (4) The request must be made at the proper place in relation to the cheque, or at a place that is a notified place in relation to the cheque for the purposes of this subsection. Note 1: Section 64 defines proper place. Note 2: Section 65A defines notified place. (5) The request must: (a) identify the cheque with reasonable certainty; and (b) be in a form that is intelligible to, or readily decipherable by, the drawee institution. (6) Without limiting the generality of subsection (5), the request is taken, for the purposes of that subsection, to identify the cheque with reasonable certainty if: (a) the sum ordered to be paid by the cheque; and (b) the cheque number; and (c) the account against which the cheque is drawn; and (d) the proper place in relation to the cheque; are specified in the request or are readily ascertainable by the drawee institution from the request. (7) If the drawee institution makes a request, the drawee institution must exhibit the cheque or copy to itself at the place specified in the request. (8) If a cheque is presented for payment otherwise than by exhibiting it to the drawee institution, nothing in this section is taken to relieve the drawee institution from any liability to which the drawee institution would have been subject in relation to the cheque if it had been presented by being exhibited to the drawee institution. 63 Presentment by person other than financial institution A person other than a financial institution may present a cheque for payment by exhibiting the cheque, in person, to the drawee institution at the proper place in relation to the cheque at a reasonable hour on a day on which the drawee institution is open for business at the place at which the cheque is exhibited. 64 Proper place The proper place in relation to a cheque is: (a) in a case where there is specified in the cheque a place of business of the drawee institution—that place; or (b) in any other case—the place of business of the branch of the drawee institution at which the account on which the cheque is drawn is maintained. 65 External presentment of cheques by financial institutions—designated places and designated exhibition places (1A) The object of this section is to identify the following for the purposes of the rules about external presentment of cheques by financial institutions: (a) designated places; (b) designated exhibition places; (c) designated times; (d) designated means of communication. (1) A financial institution may, by notice in the prescribed form published in the Gazette, specify a place as a designated place in relation to cheques for the purposes of this Act. (2) The notice shall specify: (a) either or both of the following, namely: (i) the cheques in relation to which the place is to be a designated place for the purpose of subsection 62(1); (iii) the cheques in relation to which the place is to be a designated place for the purpose of subsection 62(9); (b) the days on which, and the hours during which, the financial institution will be open for business at the place; and (c) the means by which communications may be made to the financial institution at the place. (2A) If the notice specifies: (a) the cheques in relation to which the place is to be a designated place for the purposes of subsection 62(1); and (b) exhibition as the means, or one of a number of means, by which communications may be made to the financial institution at that place; the place is a designated exhibition place in relation to the cheques for the purposes of that subsection. (2B) If the notice specifies: (a) the cheques in relation to which the place is to be a designated place for the purposes of subsection 62(9); and (b) exhibition as the means, or one of a number of means, by which communications may be made to the financial institution at that place; the place is a designated exhibition place in relation to the cheques for the purposes of that subsection. (2C) A time is a designated time for the financial institution at a particular place if the time is covered by the specification of the days on which, and the hours during which, the financial institution will be open for business at that place. (2D) A means of communication is a designated means of communication for the financial institution at a particular place if the notice specifies the means as a means by which communications may be made to the financial institution at that place. (3) The notice has effect on and from the day on which the notice is published in the Gazette or such later day as is specified in the notice. (4) If the notice is varied or revoked, the Gazette notice of the variation or revocation must specify a day as the day on which the variation or revocation takes effect. The specified day must not be earlier than 30 days after the date of the Gazette notice of variation or revocation. 65A Internal presentment of cheques by financial institutions—notified places (1) The object of this section is to identify notified places for the purposes of the rules about internal presentment of cheques by financial institutions. (2) A financial institution may, by written notice, specify a place as a notified place in relation to cheques for the purposes of this Act. The notice must be given to the eligible authority. Note: Subsection (6) defines eligible authority. (3) The notice must specify: (a) one or more of the following, namely: (i) the cheques in relation to which the place is to be a notified place for the purposes of subsection 62A(1); (ii) the cheques in relation to which the place is to be a notified place for the purposes of subsection 62A(3); (iii) the cheques in relation to which the place is to be a notified place for the purposes of subsection 62A(4); and (b) the days on which, and the hours during which, the financial institution will be open for business at the place. (3A) The place is a notified place in relation to particular cheques for the purposes of subsection 62A(1), (3) or (4) if the notice specifies that the place is a notified place in relation to the cheques for the purposes of that subsection. (4) If the notice is varied or revoked, the notice of variation or revocation must specify a day as the day on which the variation or revocation takes effect. The specified day must not be earlier than 30 days after the notice of variation or revocation is given to the eligible authority. (5) The regulations may make provision for and in relation to the keeping of a register of notices under this section by the eligible authority. In particular, the regulations may make provision for: (a) the register to be kept in such form and manner as the eligible authority directs; and (b) persons to inspect the register; and (c) persons to obtain information contained in the register; and (d) fees to be charged by the eligible authority for such an inspection or for providing such information. (6) In this section: eligible authority means: (a) Australian Payments Clearing Association Limited; or (b) if another person is approved in writing by the Minister for the purposes of this section—that other person. 66 Deposit institution to present cheques promptly (1) Subject to sections 59 and 70B, where the holder of a cheque lodges the cheque with a financial institution (the deposit institution) for collection for the holder, the deposit institution shall duly present the cheque for payment itself, or ensure that the cheque is duly presented for payment on its behalf, as soon as is reasonably practicable and, if the deposit institution fails to do so, it is liable to the holder for any loss that the holder thereby suffers. (2) Where the drawee institution makes a request under subsection 62(5) or 62A(2) in relation to the cheque, the cheque shall, for the purposes of subsection (1), be deemed not to have been duly presented for payment unless, and until, the request is complied with. (3) In determining, for the purposes of subsection (1), whether the deposit institution failed to duly present the cheque for payment itself, or to ensure that the cheque was duly presented for payment on its behalf, as soon as was reasonably practicable, regard shall be had to: (a) the fact that the instrument is a cheque and that it is reasonable to expect a cheque to be presented for payment promptly; (b) the means that were available to it for duly presenting the cheque itself and the means that were available to it for having the cheque duly presented on its behalf; (c) the relative speed, reliability and cost of those means; (d) the usage of financial institutions in relation to the presentment of cheques; (e) in a case where a request under subsection 62(5) or 62A(2) was made in relation to the cheque—the following matters, namely: (i) the making of the request; (ii) the nature of the request; (iii) whether the request was made to the deposit institution or to another financial institution acting on its behalf in relation to the presentment of the cheque; (iv) if the request was made to another financial institution acting on its behalf in relation to the presentment of the cheque—whether or not the other financial institution had actual possession of the cheque; (v) whether or not the request was complied with; (vi) if the request was complied with—the time within which the request was complied with and the means by which the request was complied with; (vii) the means that were available for complying with the request; (viii) the relative speed, reliability and cost of those means; (ix) the usage of financial institutions in relation to requests under subsection 62(5) or 62A(2); and (f) any other facts of the particular case, including: (i) the nature of the cheque and, in particular, but without limiting the ge