Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.1 - TRANSITION FROM THE OLD CORPORATIONS LEGISLATION  

Division 6 - General transitional provisions relating to other things done etc. under the old corporations legislation  

SECTION 1401   CREATION OF EQUIVALENT RIGHTS AND LIABILITIES TO THOSE THAT EXISTED BEFORE THE COMMENCEMENT UNDER REPEALED PROVISIONS OF THE OLD CORPORATIONS LEGISLATION  

1401(1)    
This section applies in relation to a right or liability (the pre-commencement right or liability ), whether civil or criminal, that:

(a) was:

(i) acquired, accrued or incurred under a provision of the old corporations legislation of a State or Territory in this jurisdiction that was no longer in force immediately before the commencement; and

(ii) in existence immediately before the commencement; or

(b) would have been:

(i) acquired, accrued or incurred under such a provision; and

(ii) in existence immediately before the commencement;

if every agreement that was valid only because of section 249 of the ASIC Act had been a valid agreement without the application of that section.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

1401(2)    
For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:

(a) the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre-commencement right or liability was acquired, accrued or incurred; and

(b) the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre-commencement right or liability.

1401(3)    
On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability ), equivalent to the pre-commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

Note: If a time limit applied in relation to the pre-commencement right or liability under the old corporations legislation, that same time limit (calculated from the same starting point) will apply under the new corporations legislation to the substituted right or liability - see subsection 1402(3) .

1401(4)    
A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the provisions taken to be included in the new corporations legislation by subsection (2) (as if those provisions applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

Note: For pre-commencement proceedings in respect of substituted rights and liabilities, see sections 1383 and 1384 .

1401(5)    

This section does not apply to a pre-commencement right or liability that:

(a) existed under a law of the Commonwealth or of a State or Territory; and

(b) would not have existed if any agreement that is valid only because of section 249 of the ASIC Act had been a valid agreement without the application of that section.

1401(6)    

Paragraph (1)(b) and subsection (5) have effect in relation to:

(a) proceedings (whether original or appellate) that begin on or after the day the Treasury Laws Amendment (2017 Measures No. 3) Act 2017 receives the Royal Assent; and

(b) proceedings that began before that day, if the proceedings (including any appeals) had not been finally determined as at that day.

1401(7)    

Nothing in paragraph (1)(b) or subsection (5) or (6) limits the operation of section 249 of the ASIC Act.