Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.5 - OPERATING A CCIV  

Division 3 - Requirement for assets and liabilities to be allocated between sub-funds  

Subdivision B - What are the assets of a particular sub-fund  

SECTION 1233J   WHEN AN ALLOCATION DETERMINATION IS REQUIRED  

1233J(1)    
This section applies if money or property acquired by a CCIV in a single transaction does not become wholly part of the assets of a single sub-fund of the CCIV under section 1233H .

1233J(2)    
The corporate director must determine (whether in the CCIV ' s allocation register or otherwise in writing) the proportion (including nil) of the money or property that is to be allocated to each sub-fund of the CCIV.

Requirements for determination

1233J(3)    
The determination:

(a)    must be fair and reasonable in the circumstances and having regard to section 1233H ; and

(b)    must result in the money or property being wholly allocated; and

(c)    must be made as soon as practicable after the money or property is acquired.

When the determination is operative

1233J(4)    
If the determination is one that a reasonable person in the corporate director ' s position could make, the determination is operative from the time the money or property is acquired, which may be earlier than the time at which the determination is made.

1233J(5)    
A determination under this section is irrevocable.

Fault-based offence

1233J(6)    
A person commits an offence if:

(a)    the person is subject to a requirement under this section; and

(b)    the person fails to comply with the requirement.

Determinations during winding up and controllership

1233J(7)    
Subsection (2) does not apply if all of the CCIV ' s sub-funds are being wound up.

1233J(8)    
Despite subsection 13.3(3) of the Criminal Code , in a prosecution for an offence based on subsection (6) of this section, a defendant does not bear an evidential burden in relation to the matter in subsection (7) .

1233J(9)    
A liquidator of a sub-fund of a CCIV, or a receiver of property of a sub-fund of a CCIV, may not make a determination under this section.

Note: A liquidator may apply to the Court for an order under section 1233Q .