Corporations Act 2001

CHAPTER 5D - LICENSED TRUSTEE COMPANIES  

PART 5D.6 - ASIC-APPROVED TRANSFERS OF ESTATE ASSETS AND LIABILITIES  

Division 2 - Transfer of estate assets and liabilities  

SECTION 601WBA   TRANSFER DETERMINATIONS  

601WBA(1)    

ASIC may, in writing, make a determination (a transfer determination ) that there is to be a transfer of estate assets and liabilities from a specified company (the transferring company ) to another specified company (the receiving company ) if:

(a)    

ASIC has under Part 7.6 cancelled the transferring company ' s Australian financial services licence or varied the conditions of the transferring company ' s Australian financial services licence so that the licence ceases to cover traditional trustee company services (the determination is a compulsory transfer determination ); or

(b)    the transferring company has applied in the prescribed form for a determination (the determination is a voluntary transfer determination ).

601WBA(2)    

ASIC may make a transfer determination only if:

(aa)    

for a compulsory transfer determination - the receiving company is a licensed trustee company or the Public Trustee of a State or Territory; and

(ab)    

for a voluntary transfer determination:

(i) the transferring company is a licensed trustee company or a company that was previously authorised as a trustee company under a law of a State or Territory; and

(ii) the receiving company is a licensed trustee company; and

(a)    either:

(i) the Minister has consented to the transfer; or

(ii) the Minister ' s consent to the transfer is not required (see section 601WBD ); and

(b)    

ASIC is satisfied that:

(i) the transfer is in the interests of clients of the transferring company (when viewed as a group); and

(ii) unless the receiving company is a Public Trustee - the transfer is in the interests of clients of the receiving company (when viewed as a group); and

(iii) the board of the receiving company has consented to the transfer; and

(iv) legislation to facilitate the transfer that satisfies the requirements of section 601WBC has been enacted in the State or Territory in which the transferring company is registered and the State or Territory in which the receiving company is registered or of which it is the Public Trustee.

601WBA(2A)    

Even if the Public Trustee of a State or Territory is not a company:

(a)    the Public Trustee may still be specified as a receiving company for the purposes of a compulsory transfer determination; and

(b)    references in this Part (however expressed) to:

(i) a company; or

(ii) the board of a company;

are taken to be references to that Public Trustee.

601WBA(3)    
The determination must include particulars of the transfer, including:

(a)    the names of the transferring company and the receiving company; and

(b)    

for a compulsory transfer determination - whether it will be a total transfer or a partial transfer of the transferring company ' s estate assets and liabilities; and

(c)    if it will be a partial transfer - an indication of the part of the transferring company ' s estate assets and liabilities that is to be transferred; and

(d)    

for a voluntary transfer determination - that it will be a total transfer of the transferring company ' s estate assets and liabilities.

601WBA(4)    
The determination must include a statement of the reasons why the determination has been made.

601WBA(5)    
The determination is not a legislative instrument.