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 C - What are the liabilities of a particular sub-fund  

SECTION 1233M   WHEN AN ALLOCATION DETERMINATION IS REQUIRED  

1233M(1)    
This section applies if a liability of a CCIV does not relate solely to the business of one sub-fund of the CCIV.

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

Requirements for determination

1233M(3)    
The determination:

(a)    must be fair and reasonable in the circumstances and having regard to the matters referred to in paragraph 1233L(1)(b) ; and

(b)    must result in the liability being wholly allocated; and

(c)    must be made as soon as practicable after the liability arises; and

(d)    must be expressed to apply from the time the liability arises (which may be earlier than the time at which the determination is made).

When the determination is operative

1233M(4)    
A determination under this section (including a determination as varied under section 1233N ) is operative at a time if:

(a)    the determination applies at that time; and

(b)    the determination is one that a reasonable person in the corporate director ' s position could make.

1233M(5)    
A determination under this section is irrevocable, however it may be varied under section 1233N even if it has become inoperative.

Fault-based offence

1233M(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

1233M(7)    
Subsection (1) does not apply if all of the CCIV ' s sub-funds are being wound up.

1233M(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) .

1233M(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 .