Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
View history note
Hide history noteA share, other interest of a member in a company or interest of a person in a registered scheme:
(a) is personal property; and
(b) is transferable or transmissible as provided by:
(i) the company's, or scheme's, constitution; or
(ii) the operating rules of a prescribed CS facility if they are applicable; and
(c) is capable of devolution by will or by operation of law. 1070A(2) [ Devolution by will]
Paragraph (1)(c) has effect subject to:
(a) in the case of a company:
(i) the company's constitution (if any); and
(ii) any replaceable rules that apply to the company; and
(iii) the operating rules of a prescribed CS facility if they apply to the share or interest; and
(b) in the case of a scheme:
(i) the scheme's constitution; and
1070A(3) [ Application of laws and equitable interests]
(ii) the operating rules of a prescribed CS facility if they apply to the interest.
(a) the laws applicable to ownership of, and dealing with, personal property apply to a share, other interest of a member in a company or interest of a person in a registered scheme as they apply to other property; and
(b) equitable interests in respect of a share, interest of a member in a company or other interest of a person in a registered scheme may be created, dealt with and enforced as in the case of other personal property. 1070A(4) [ Jurisdiction]
For the purposes of any law, a share, other interest of a member in a company or interest of a person in a registered scheme is taken to be situated:
(a) if the share, interest in a company, or interest in a registered scheme is entered on the register kept under section 169 - in the State or Territory where that register is kept; or
(b) if the share or interest in the company is entered on an overseas branch register kept under section 178 - in the foreign country where that register is kept.
Except as provided in subsection (2), a company must ensure that each share in the company is distinguished by an appropriate number.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1070B(2) [ No distinguishing number required](a) if at any time all the issued shares in a company, or all the issued shares in a company of a particular class:
(i) are fully paid up; and
none of those shares is required to have a distinguishing number so long as each of those shares remains fully paid up, and ranks equally for all purposes with all shares of the same class for the time being issued and fully paid up; and
(ii) rank equally for all purposes;
(b) if:
(i) all the issued shares in a company are evidenced by certificates in accordance with section 1070C ; and
(ii) each certificate is distinguished by an appropriate number; and
none of those shares is required to have a distinguishing number; and
(iii) that number is recorded in the register of members;
(c) a share need not have a distinguishing number if the operating rules of a prescribed CS facility through which it is able to be transferred provide that the share need not have a distinguishing number.
Note: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .
A company must ensure that a certificate it issues specifying the shares held by a member of the company states:
(a) the name of the company and the fact that it is registered under this Act; and
(b) the class of the shares; and
(c) the amount (if any) unpaid on the shares.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1070C(2) [ Title]A certificate issued in accordance with subsection (1) specifying shares held by a member of a company is prima facie evidence of the title of the member to the shares.
1070C(3) [ Rights of holder unaffected]A failure to comply with subsection (1) does not affect the rights of a holder of shares.
This section applies to the following securities: (a) shares in a company; (b) debentures of a company; (c) interests in a registered scheme.
1070D(2)
This section applies to an interest in a registered scheme as if: (a) references to a company were instead references to the responsible entity of the registered scheme; and (b) references to the directors of a company were instead references to the directors of the responsible entity of the registered scheme.
1070D(3)
A company must, in accordance with subsection (4), issue a duplicate certificate or other title document for securities if: (a) the certificate or document is lost or destroyed; and (b) the owner of the securities applies to the company for the duplicate in accordance with subsection (5); and (c) the owner complies with any requirements made in accordance with subsection (6).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1070D(4)
The company must issue the duplicate: (a) if the company requires the payment of an amount not exceeding the amount prescribed by regulations made for the purposes of this paragraph - within 21 days after the payment is received by the company or within such longer period as ASIC approves; or (b) in a case to which paragraph (a) does not apply - within 21 days after the application is made or within such longer period as ASIC approves.
1070D(5)
The application must be accompanied by: (a) a statement in writing that the certificate or other document:
(i) has been lost or destroyed; and
(b) if the certificate or other document has been lost - a statement in writing that proper searches have been made; and (c) an undertaking in writing that if the certificate or other document is found or received by the owner it will be returned to the company.
(ii) has not been pledged, sold or otherwise disposed of; and
1070D(6)
The directors of the company may, before accepting an application for the issue of a duplicate certificate, require the applicant to do either or both of the following: (a) publish a notice in a manner specified by the directors stating that:
(i) the certificate or other document has been lost or destroyed; and
(b) give a bond for an amount equal to at least the current market value of the securities indemnifying the company against loss following the production of the original certificate or other document.
(ii) the owner intends, after the end of 14 days after the publication of the advertisement, to apply to the company for a duplicate certificate;
1070D(7)
If: (a) a certificate or other title document for securities is cancelled in reliance on the operating rules of a prescribed CS facility; and (b) having regard to those provisions, the certificate or other document should not have been cancelled;
this section applies to the certificate or other document as though it were destroyed on its cancellation.
Division 2 - Transfer of certain securities Subdivision A - General provisions SECTION 1071A APPLICATION OF THE SUBDIVISION TO CERTAIN SECURITIES 1071A(1) [ Application]
This Subdivision applies to the following securities:
(a) shares in a company;
(b) debentures of a company;
(c) interests in a registered scheme. 1071A(2) [ Managed investment product]
This Subdivision applies to an interest in a registered scheme as if:
(a) references to a company were instead references to the responsible entity of the registered scheme; and
(b) references to the constitution of a company were instead references to the constitution of the registered scheme; and
(c) references to members of a company were instead references to members of the registered scheme.
This section does not apply to a transfer of a security through a prescribed CS facility.
1071B(2) [ Proper instrument of transfer]Subject to subsection (5), a company must only register a transfer of securities if a proper instrument of transfer (see subsections (3) and (4)) has been delivered to the company. This is so despite:
(a) anything in its constitution; or
(b) anything in a deed relating to debentures.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1071B(3) [ Details of company to be shown]An instrument of transfer is not a proper instrument of transfer for the purposes of subsection (2) if it does not show the details, specified in the regulations, in relation to the company concerned.
1071B(4) [ Sufficient transfer]If the transfer of the securities is covered by Division 3 of this Part, then (in addition to subsection (3)), the instrument is not a proper instrument of transfer for the purposes of subsection (2) unless it is a sufficient transfer of the securities under regulations made for the purposes of that Division.
1071B(5) [ Devolution by will or operation of law]Subsection (2) does not prejudice the power of the company to register, as the holder of securities, a person to whom the right to the securities has devolved by will or by operation of law.
1071B(6) [ Transfer of security of deceased holder]Subsections (7) to (13) deal with a transfer of a security of a dead holder by the dead holder's personal representative. They deal with the transfer differently depending on whether the personal representative is a local representative or not.
1071B(7) [ ``local representative'']The personal representative is alocal representative if the representative is duly constituted as a personal representative under the law of the State or Territory in which the security is situated.
Note: Subsection 1070A(4) provides that the security is situated where the relevant register is kept.
1071B(8) [ Transfer by local representative]If the personal representative is a local representative, a transfer of the security by the representative is as valid as if the representative had been registered as the holder of the security at the time when the instrument of transfer was executed.
1071B(9) [ Transfer by representative who is not local representative](a) the personal representative is not a local representative; and
(b) the representative:
(i) executes an instrument of transfer of the security to the representative or to another person; and
(ii) delivers the instrument to the company; and
(iii) delivers to the company with the instrument a statement in writing made by the representative to the effect that, to the best of the representative's knowledge, information and belief, no grant of representation of the estate of the deceased holder has been applied for or made in the State or Territory in which the security is located and no application for such a grant will be made; and
(c) the statement is made within 3 months immediately before the date on which the statement is delivered to the company;
the company must (subject to subsection (10)) register the transfer and pay to the representative any dividends or other money accrued in respect of the security up to the time when the instrument was executed.
1071B(10) [ Operation]Subsection (9) does not operate so as to require the company to do anything that it would not have been required to do if the personal representative were a local representative.
1071B(11) [ Effect of transfer or payment]A transfer or payment made under subsection (9) and a receipt or acknowledgment of such a payment is, for all purposes, as valid and effectual as if the personal representative were a local representative.
1071B(12) [ Application for registration as holder of share]For the purposes of this section, an application by a personal representative of a dead person for registration as the holder of a security in place of the dead person is taken to be an instrument of transfer effecting a transfer of the security to the personal representative.
1071B(13) [ Evidence of probate of will, etc]The production to a company of a document that is, under the law of a State or Territory, sufficient evidence of probate of the will, or letters of administration of the estate, of a dead person having been granted to a person, is sufficient evidence of the grant (for the company's purposes). This is so despite:
(a) anything in its constitution; or
(b) in a deed relating to debentures.
A document transferring securities need not state the occupation of the transferor or transferee and, if it is signed by a person, the signature need not be witnessed.
1071C(2) [ Paramountcy]Subsection (1) applies despite anything in:
(a) the constitution of:
(i) a company; or
(ii) a body referred to in paragraph 1073C (a) or (b); or
(b) the terms and conditions on which securities are created or issued. 1071C(3) [ No breach of law, etc]
The omission from a register, certificate, document transferring securities or other document relating to a security, of a statement of the occupation of a person who is, or is entitled to be, registered as the holder of the security does not breach any law, constitution, trust deed or other document relating to the securities.
A written application by the transferor of a security of a company for the transferee ' s name to be entered in the appropriate register is as effective (for the company ' s purposes) as if it were an application by the transferee. The application is subject to the same conditions as it would be if it had been made by the transferee.
1071D(2)
If the transferor of a security of a company requests the company in writing to do so, the company must, by written notice, require a person who has possession, custody or control of either or both of the following: (a) any title documents for the security; (b) the instrument of transfer of the security;
to bring it or them into the office of the company within a specified period, to have the document cancelled or rectified and the transfer registered or otherwise dealt with.
1071D(3)
The period specified under subsection (2) must be not less than 7 and not more than 28 days after the date of the notice.
1071D(4)
If a person refuses or fails to comply with a notice given under subsection (2) , the transferor may apply to the Court for the issue of a summons for that person to appear before the Court and show cause why the documents mentioned in the notice should not be delivered up or produced as required by the notice.
1071D(5)
The Court may: (a) if the person appears:
(i) examine the person upon oath or affirmation; and
(b) if the person does not appear after being duly served with the summons - receive evidence in the person ' s absence; and (c) in either case order the person to deliver up such documents to the company upon such terms or conditions as the Court considers just and reasonable.
(ii) receive other evidence; and
The costs of the summons and of proceedings on the summons are in the discretion of the Court.
1071D(6)
Lists of documents required to be brought in under subsection (2) but not brought in in accordance with a requirement made under subsection (2) or delivered up in accordance with an order under subsection (5) , must be: (a) exhibited in the office of the company; and (b) advertised in the Gazette and by publishing a notice in any other manner the company thinks fit.
If a company refuses to register a transfer of a security of the company, it must, within 2 months after the date on which the transfer was lodged with it, give the transferee notice of the refusal.
Note: Failure to comply with this section is an offence (see subsection 1311(1) ).
If a relevant authority in relation to a company:
(a) refuses or fails to register; or
(b) refuses or fails to give its consent or approval to the registration of;
a transfer or transmission of securities of the company, the transferee or transmittee may apply to the Court for an order under this section.
1071F(2) [ Orders]If the Court is satisfied on the application that the refusal or failure was without just cause, the Court may:
(a) order that the transfer or transmission be registered; or
(b) make such other order as it thinks just and reasonable, including:
(i) in the case of a transfer or transmission of shares - an order providing for the purchase of the shares by a specified member of the company or by the company; and
1071F(3) [ ``relevant authority'']
(ii) in the case of a purchase by the company - an order providing for the reduction accordingly of the capital of the company.
In this section:
relevant authority
, in relation to a company, means:
(a) a person who has, 2 or more persons who together have, or a body that has, authority to register a transfer or transmission of securities of the company; or
(b) a person, 2 or more persons, or a body, whose consent or approval is required before a transfer or transmission of securities of the company is registered.
The certification by a company of an instrument of transfer of securities of the company:
(a) is taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show prima facie title to the securities in the transferor named in the instrument of transfer; and
(b) is not taken as a representation that the transferor has any title to the securities.
If a person acts on the faith of a false certification by a company made negligently, the company is under the same liability to the person as if the certification had been made fraudulently.
A certification may beexpressed to be limited to 42 days or any longer period from the date of certification. If it is, the company and its officers and employees are not, in the absence of fraud, liable in respect of the registration of any transfer of securities comprised in the certification after the end of:
(a) the period so limited; or
(b) any extension of that period given by the company;
if the instrument of transfer has not, within that period, been lodged with the company for registration.
For the purposes of this section:
(a) an instrument of transfer is taken to be certified if it bears the words ``certificate lodged'' or words to the like effect; and
(b) the certification of an instrument of transfer is taken to be made by a company if:
(i) the person issuing the instrument is a person authorised to issue certified instruments of transfer on the company's behalf; and
(ii) the certification is signed by a person authorised to certify transfers on the company's behalf or by an officer of the company or of a body corporate so authorised; and
(c) a certification that purports to be authenticated by a person's signature or initials (whether handwritten or not) is taken to be signed by the person unless it is shown that the signature or initials:
(i) was not or were not placed there by the person; and
for the purpose of certifying transfers on the company's behalf.
(ii) was not or were not placed there by any other person authorised to use the signature or initials;
Subject to subsection (2), within 2 months after a company issues a security, the company must:
(a) complete and have ready for delivery to the holder of the security all the appropriate certificates or other title documents in connection with the issue of the security; and
(b) unless otherwise instructed by the holder, send or deliver the completed certificates or other title documents to:
(i) the holder; or
(ii) if the holder has instructed the company in writing to send them to a nominated person - that person.
Paragraph (a) has effect in relation to shares subject to the conditions on which the shares are issued.
If the operating rules of a prescribed CS facility include a provision to the effect that:
(a) no document is required by subsection (1) to be completed and delivered by a company in relation to the issue of a security in specified circumstances; or
(b) the only document required by subsection (1) to be completed and delivered by a company in relation to the issue of a security in specified circumstances is the document required by the provision;
the provision has effect accordingly.
Within one month after the date on which a transfer of a security is lodged with a company, the company must:
(a) complete and have ready for delivery to the transferee all the appropriate transfer and title documents in connection with the transfer; and
(b) unless otherwise instructed by the transferee, send or deliver the completed documents to:
(i) the transferee; or
(ii) if the transferee has instructed the company in writing to send them to a nominated person - that person.
This subsection does not apply to a transfer that the company is for any reason entitled to refuse to register and does not register.
The only document required by subsection (3) to be completed and delivered by a company in relation to a transfer covered by the operating rules of a prescribed CS facility is the document (if any) that those rules require to be completed and delivered.
(a) with subsection (1) in relation to the issue of a security; or
(b) with subsection (3) in relation to a transfer of a security;
if the person to whom the security is issued, or the transferee, has:
(c) applied to ASIC for the making of a declaration under this subsection; and
(d) been declared by ASIC, by writing published in the Gazette , to be a person in relation to whom this section does not apply.
(a) either:
(i) if subsection (1) applies - the holder referred to in that subsection serves a notice on the company requiring the company to remedy a contravention of that subsection; or
(ii) if subsection (3) applies - the transferee referred to in that subsection serves a notice on the company requiring the company to remedy a contravention of that subsection; and
(b) the company fails to remedy the contravention within 10 days after the service of the notice; and
(c) the person entitled to have the documents delivered to him or her applies to the Court for an order under this subsection;
the Court may make an order directing the company and any officer or employee of the company to remedy the contravention within such period as is specified in the order.
An order under subsection (6) may provide that all costs of, and incidental to, the application are to be borne by:
(a) the company; or
(b) any officer or employee of the company who was involved in the contravention;
in such proportions as the Court thinks just and reasonable.
If a shareholder who does not own shares jointly dies, the company will recognise only the personal representative of the deceased shareholder as being entitled to the deceased shareholder's interest in the shares.
1072A(2) [ Transmission]If the personal representative gives the directors the information they reasonably require to establish the representative's entitlement to be registered as holder of the shares:
(a) the personal representative may:
(i) by giving a written and signed notice to the company, elect to be registered as the holder of the shares; or
(ii) by giving a completed transfer form to the company, transfer the shares to another person; and
(b) the personal representative is entitled, whether or not registered as the holder of the shares, to the same rights as the deceased shareholder. 1072A(3) [ Election]
On receiving an election under subparagraph (2)(a)(i), the company must register the personal representative as the holder of the shares.
1072A(4) [ Transfer rules]A transfer under subparagraph (2)(a)(ii) is subject to the same rules (for example, about entitlement to transfer and registration of transfers) as apply to transfers generally.
1072A(5) If shares held jointly.If a shareholder who owns shares jointly dies, the company will recognise only the survivor as being entitled to the deceased shareholder's interest in the shares. The estate of the deceased shareholder is not released from any liability in respect of the shares.
If a person entitled to shares because of the bankruptcy of a shareholder gives the directors the information they reasonably require to establish the person's entitlement to be registered as holder of the shares, the person may:
(a) by giving a written and signed notice to the company, elect to be registered as the holder of the shares; or
(b) by giving a completed transfer form to the company, transfer the shares to another person. 1072B(2) [ Election]
On receiving an election under paragraph (1)(a), the company must register the person as the holder of the shares.
1072B(3) [ Transfer rules]A transfer under paragraph (1)(b) is subject to the same rules (for example, about entitlement to transfer and registration of transfers) as apply to transfers generally.
1072B(4) [ Bankruptcy Act]This section has effect subject to the Bankruptcy Act 1966 .
(a) because of the Bankruptcy Act 1966 , a share in a company, being part of the property of a bankrupt, vests in the trustee of the bankrupt's estate; and
(b) the bankrupt is the registered holder of that share;
this section applies whether or not the trustee has been registered as the holder of the share.
1072C(2) [ Trustee's entitlements]On producing such information as the company's directors properly require, the trustee is entitled to:
(a) the same dividends and other benefits; and
(b) the same rights, for example, but without limitation, rights in relation to:
(i) meetings of the company; or
(ii) documents, including notices of such meetings; or
(iii) voting; or
(iv) inspection of the company's records;
as the bankrupt would be entitled to if he or she were not a bankrupt.
1072C(3) [ Trustee's rights]The trustee has the same rights:
(a) to transfer the share; and
(b) to require a person to do an act or give a consent in connection with completing or registering a transfer of the share;
as the bankrupt would have if he or she were not a bankrupt.
1072C(4) [ Transfer of share]If the trustee transfers the share, the transfer is as valid as if the trustee had been registered as the holder of the share when the trustee executed the instrument of transfer.
1072C(5) [ Consent or approval for transfer]A person or body whose consent or approval is required for the transfer of shares in the company must not unreasonably withhold consent or approval for the transfer of the share by the trustee.
1072C(6) [ Effect of pre-emption provision](a) the company's constitution requires:
(i) the share to be offered for purchase to a member of the company; or
(ii) an invitation to buy the share to be issued to such a member; and
(b) as at the end of a reasonable period after the trustee so offers the share, or so issues such an invitation, no such member has agreed to buy the share from the trustee at a reasonable price;
the trustee may sell and transfer the share to a person other than such a member.
1072C(7) [ Trustee unaffected by restrictions on bankrupt shareholder]A provision of the company's constitution is void as against the trustee in so far as, apart from this section, it would affect rights attached to the share:
(a) because the bankrupt is a bankrupt; or
(b) because of some event that led to the bankrupt becoming, or that indicated that the bankrupt was about to become, or might be about to become, a bankrupt; or
(c) for reasons including a reason referred to in paragraph (a) or (b). 1072C(8) [ Generality of section]
Nothing in this section limits the generality of anything else in it.
1072C(9) [ Paramountcy]This section has effect despite anything in the company's constitution.
If a person entitled to shares because of the mental incapacity of a shareholder gives the directors the information they reasonably require to establish the person's entitlement to be registered as the holder of the shares:
(a) the person may:
(i) by giving a written and signed notice to the company, elect to be registered as the holder of the shares; or
(ii) by giving a completed transfer form to the company, transfer the shares to another person; and
(b) the person is entitled, whether or not registered as the holder of the shares, to the same rights as the shareholder. 1072D(2) [ Election]
On receiving an election under subparagraph (1)(a)(i), the company must register the person as the holder of the shares.
1072D(3) [ Transfer rules]A transfer under subparagraph (1)(a)(ii) is subject to the same rules (for example, about entitlement to transfer and registration of transfers) as apply to transfers generally.
In this section:
share
, in relation to a body corporate, means a share in the body that is registered in a register kept in this jurisdiction.
1072E(2)
A trustee, executor or administrator of the estate of a dead person who was the registered holder of a share in a corporation may be registered as the holder of that share as trustee, executor or administrator of that estate.
1072E(3)
A trustee, executor or administrator of the estate of a dead person who was entitled in equity to a share in a corporation may, with the consent of:
(a) the corporation; and
(b) the registered holder of that share;
be registered as the holder of that share as trustee, executor or administrator of that estate.
1072E(4)
If:
(a) a person (the administrator ) is appointed, under a law of a State or Territory relating to the administration of the estates of persons who, through mental or physical infirmity, are incapable of managing their affairs, to administer the estate of a person who is so incapable; and
(b) the incapable person is the registered holder of a share in a corporation;
the administrator may be registered as the holder of that share as administrator of that estate.
1072E(5)
If:
(a) a person (the administrator ) is appointed, under a law of a State or Territory relating to the administration of the estates of a person who, through mental or physical infirmity, are incapable of managing their affairs, to administer the estate of a person who is so incapable; and
(b) the incapable person is entitled in equity to a share in a corporation;
the administrator may, with the consent of the corporation and of the registered holder of that share, be registered as the holder of the share as administrator of that estate.
1072E(6)
If:
(a) by virtue of the Bankruptcy Act 1966 , a share in a body corporate, being the property of a bankrupt, vests in the Official Trustee in Bankruptcy; and
(b) the bankrupt is the registered holder of that share;
the Official Trustee may be registered as the holder of that share as the Official Trustee in Bankruptcy.
1072E(7)
If:
(a) by virtue of the Bankruptcy Act 1966 , a share in a body corporate, being the property of a bankrupt, vests in the Official Trustee in Bankruptcy; and
(b) the bankrupt is entitled in equity to that share;
the Official Trustee may, with the consent of the body and of the registered holder of that share, be registered as the holder of that share as the Official Trustee in Bankruptcy.
1072E(8)
A person registered under subsection (2), (3), (4), (5), (6) or (7), is, while registered as mentioned in that subsection:
(a) subject to the same liabilities in respect of the share as those to which he, she or it would have been subject if the share had remained, or had been, as the case requires, registered in the name of the dead person, the incapable person or the bankrupt, as the case may be; and
(b) subject to no other liabilities in respect of the share.
1072E(9)
Shares in a corporation registered in a register and held by a trustee in respect of a particular trust may, with the consent of the corporation, be marked in the register in such a way as to identify them as being held in respect of the trust.
1072E(10)
Except as provided in this section and section 169 : (a) no notice of a trust, whether express, implied or constructive, must be entered on a register kept in this jurisdiction or be receivable by ASIC; and (b) no liabilities are affected by anything done under a preceding subsection of this section or under section 169 ; and (c) nothing so done affects the body corporate concerned with notice of a trust.
[ CCH Note: S 1072E(10) will be amended by No 69 of 2020, s 3, Sch 1[1186], by inserting " or the Registrar " after " ASIC " in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1072E(11)
A person must, within one month after beginning to hold shares in a proprietary company as trustee for, or otherwise on behalf of or on account of, a body corporate, serve on the company notice in writing that the person so holds the shares.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
A person transferring shares remains the holder of the shares until the transfer is registered and the name of the person to whom they are being transferred is entered in the register of members in respect of the shares.
1072F(2) [ Directors not required to register transfer]The directors are not required to register a transfer of shares in the company unless:
(a) the transfer and any share certificate have been lodged at the company's registered office; and
(b) any fee payable on registration of the transfer has been paid; and
(c) the directors have been given any further information they reasonably require to establish the right of the person transferring the shares to make the transfer. 1072F(3) [ Directors may refuse to register]
The directors may refuse to register a transfer of shares in the company if:
(a) the shares are not fully-paid; or
(b) the company has a lien on the shares. 1072F(4) [ Directors may suspend registration]
The directors may suspend registration of transfers of shares in the company at the times and for the periods they determine. The periods of suspension must not exceed 30 days in any one calendar year.
The directors of a proprietary company may refuse to register a transfer of shares in the company for any reason.
If, upon registration of a transfer of shares in a company, the transferee would hold non-beneficially particular shares (the relevant shares ), being all or any of the shares to which the transfer relates, the transferee must only lodge the instrument of transfer with the company for registration of the transfer if the instrument of transfer includes a notice that:
(a) contains a statement to the effect that, upon registration of the transfer, the transferee will hold the relevant shares non-beneficially; and
(b) sets out particulars of the relevant shares; and
(c) is signed by or on behalf of the transferee.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1072H(2) [ Validity of registration of transfer]The fact that a person has failed to comply with subsection (1) does not affect the validity of the registration of a transfer of shares in a company.
1072H(3) [ Transferee holds shares beneficially](a) an instrument of transfer of shares in a company includes a notice of the kind referred to in paragraph (1)(c) and is lodged with the company for registration of the transfer; and
(b) upon registration of the transfer, the transferee holds beneficially particular shares (in this subsection called the relevant shares ), being all or any of the shares particulars of which are set out in the notice;
then, before the end of 14 days beginning on registration of the transfer, the transferee must, whether or not the transferee begins before the end of that period to hold all or any of the relevant shares non-beneficially, give to the company a notice that:
(c) sets out the name and address of the transferee; and
(d) contains a statement to the effect that, as from registration of the transfer, the transferee holds the relevant shares beneficially; and
(e) sets out particulars of the relevant shares; and
(f) is signed by or on behalf of the transferee.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1072H(4) [ Transferee holds shares non-beneficially](a) an instrument of transfer of shares in a company is lodged with the company for registration of the transfer; and
(b) upon registration of the transfer, the transferee holds non-beneficially particular shares (in this subsection called the relevant shares ), being all or any of the shares to which the instrument of transfer relates (other than, in a case in which the instrument of transfer includes a notice of the kind referred to in paragraph (1)(c), the shares particulars of which are set out in the notice);
then, before the end of 14 days beginning on registration of the transfer, the transferee must, whether or not the transferee begins before the end of that period to hold any of the relevant shares beneficially, give to the company a notice that:
(c) sets out the name and address of the transferee; and
(d) contains a statement to the effect that, as from registration of the transfer, the transferee holds the relevant shares non-beneficially; and
(e) sets out particulars of the relevant shares; and
(f) is signed by or on behalf of the transferee.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1072H(5) [ Beneficial holding becoming non-beneficial](a) at a particular time, a person holds beneficially shares in a company; and
(b) immediately after that time, the person holds non-beneficially particular shares (in this subsection called the relevant shares ), being all or any of the shares referred to in paragraph (a);
then, before the end of 14 days beginning at that time, the person must, whether or not the person recommences before the end of that period to hold any of the relevant shares beneficially, give to the company a notice that:
(c) sets out the name and address of the person; and
(d) contains a statement to the effect that, after that time, the person holds the relevant shares non-beneficially; and
(e) specifies that time and sets out particulars of the relevant shares; and
(f) is signed by or on behalf of the person.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1072H(6) [ Non-beneficial holding becoming beneficial](a) at a particular time, a person holds non-beneficially shares in a company; and
(b) immediately after that time, the person holds beneficially particular shares (in this subsection called the relevant shares ), being all or any of the shares referred to in paragraph (a);
then, before the end of 14 days beginning at that time, the person must, whether or not the person recommences before the end of that period to hold any of the relevant shares non-beneficially, give to the company a notice that:
(c) sets out the name and address of the person; and
(d) contains a statement to the effect that, after that time, the person holds the relevant shares beneficially; and
(e) specifies that time and sets out particulars of the relevant shares; and
(f) is signed by or on behalf of the person.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1072H(7) [ Presumption of awareness]In proceedings under, or for an offence based on a provision of, this section, a person is, unless the contrary is established, presumed to have been aware at a particular time of a circumstance of which an employee or agent of the person, being an employee or agent having duties or acting in relation to the transfer to, or ownership by, the person of a share or shares in the company concerned, was aware at that time.
1072H(8) [ Presumptions as to ownership]For the purposes of this section and of section 169 :
(a) if, at a particular time, a person:
(i) holds shares in a capacity other than that of sole beneficial owner; or
the first-mentioned person is taken to hold the shares non-beneficially at that time; and
(ii) without limiting the generality of subparagraph (i), holds shares as trustee for, as nominee for, or otherwise on behalf of or on account of, another person;
(b) a person who holds shares at a particular time is taken to hold the shares beneficially at that time unless the person holds the shares non-beneficially at that time.
This Division applies to the following securities:
(a) shares in a company;
(b) debentures of a company;
(c) interests in a registered scheme, being interests that are covered by regulations made for the purposes of this paragraph;
(d) rights (whether existing or future, and whether contingent or not) to acquire, by way of issue, a security referred to in paragraph (a), (b) or (c) (whether or not on payment of any money or for any other consideration);
(da) a CGS depository interest;
(db) a simple corporate bonds depository interest;
(e) securities declared by ASIC under section 1073E to be securities to which the regulations apply.
1073A(2)
This Division applies to an interest in a registered scheme as if:
(a) references to a company were instead references to the responsible entity of the registered scheme; and
(b) references to the constitution of a company were instead references to the constitution of the registered scheme; and
(c) references to members of a company were instead references to members of the registered scheme.
SECTION 1073B 1073B MEANING OF TRANSFER
In this Division and Division 4 transfer of a financial product means: (a) a change in the ownership of the financial product; or (b) if the financial product is a right - the renunciation and transfer of the right.
This Division applies to the following as if they were companies:
(a) a body corporate (other than a company) that:
(i) is incorporated in a State or Territory in this jurisdiction; and
(ii) is prescribed by regulations made for the purposes of this subparagraph;
(b) an unincorporated society, association or body, that:
(i) is formed or established in a State or Territory in this jurisdiction; and
(ii) is included in the official list of a licensed market; and
(iii) is prescribed by regulations made for the purposes of this paragraph.
The regulations may make provision in relation to transfers of securities that are not effected through a prescribed CS facility.
1073D(2) Regulations may make provision in relation to the transfer of securities.(a) the way in which a security may be transferred, including:
(i) the forms (if any) to be used; and
(ii) what amounts to a proper or sufficient transfer of a security; and
(b) the legal effect of a proper or sufficient transfer of a security; and
(c) the rights, liabilities and obligations of a person in relation to the transfer of a security, including the rights, liabilities and obligations of:
(i) the transferor and transferee; and
(ii) any other person involved in the transfer; and
(d) the circumstances in which a person will be taken to be involved in the transfer of a security for the purposes of the regulations; and
(e) the circumstances in which a person is required not to register, or give effect to, a transfer. 1073D(3) Sufficient transfer.
Without limiting paragraph (2)(a), the regulations may:
(a) specify the requirements for a document to be a sufficient transfer of a security; and
(b) provide that a document meeting specified requirements may be used:
(i) as a proper instrument of transfer for the purposes of section 1071B ; and
1073D(4) Rights and liabilities in relation to transfer.
(ii) as an instrument of transfer for the purposes of any other law or instrument governing or relating to the security.
Without limiting paragraph (2)(c), the regulations may provide that a person:
(a) is taken to have:
(i) agreed to do, to accept or to be bound by a particular thing; or
(ii) done a particular thing; or
(iii) given particular warranties; or
(iv) done particular things on behalf of another person; or
(b) is taken to be authorised to do particular things on behalf of another person; or
(c) is taken to be bound by a particular act; or
(d) is liable to indemnify another person against particular loss or damage; or
(e) is entitled to assume a particular matter without inquiry. 1073D(5) Person involved in transfer.
Without limiting paragraph (2)(d), the regulations may provide for any of the following to be taken to be involved in a transfer of securities:
(a) a person who carries on a financial services business and who arranges for the transfer; and
(b) a person who operates a financial market on which the securities are sold; and
(c) a person who operates a licensed CS facility through which the securities are transferred; and
(d) a company with which the transfer is lodged for registration; and
(e) an associate of a person who is involved in the transfer.
The regulations may specify the circumstances in which a person will be taken to be an associate of another person for the purposes of the regulations.
1073D(6) Offences.Without limiting subsection (2), the regulations may provide for offences in relation to:
(a) the use, or purported use, of a stamp of a person who:
(i) carries on a financial services business; or
(ii) operates a financial market; or
(iii) operates a clearing and settlement facility; or
(b) the execution of a document, or the transmission of an electronic message or other electronic communication, that may be used as a sufficient transfer under this Division; or
(c) the lodgment of a transfer document or title document for a security with the issuer of the security; or
(d) the use of identifying codes in relation to transfers of securities. 1073D(7) Jurisdiction.
The regulations may apply to conduct engaged in in this jurisdiction or elsewhere.
ASIC may, by writing, declare that:
(a) particular securities; or
(b) a particular class of securities;
are securities to which this Division, and regulations made for the purposes of section 1073D , apply.
Note: The securities in respect of which a declaration under this subsection may be made are not limited to those covered by paragraphs 1073A(1) (a) to (db).
1073E(2)
ASIC may specify in the declaration modifications of the regulations that are to have effect in relation to the application of this Division and the regulations to the securities, or the class of securities, to which the declaration relates.
1073E(3)
A declaration under subsection (1) has effect accordingly.
1073E(4)
ASIC must cause a copy of a declaration under subsection (1) to be published in the Gazette .
1073E(5)
If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under subsection (1) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (4)):
(a) the text of the declaration was made available by ASIC on the internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
SECTION 1073F OPERATION OF THIS DIVISION AND REGULATIONS MADE FOR ITS PURPOSES 1073F(1) [ Purpose]
This section deals with the effect of the provisions of:
(a) this Division; and
(b) the regulations made for the purposes of this Division. 1073F(2) [ Paramountcy]
The provisions apply in relation to a transfer of securities despite anything to the contrary in:
(a) this Act (other than this Division); or
(b) another law, or instrument, relating to the transfer of the securities. 1073F(3) [ Terms and conditions of sale otherwise unaffected]
Except as provided in the provisions, the provisions do not affect the terms and conditions on which securities are sold.
1073F(4) [ Issuer's right to refuse to register, etc]Nothing in the provisions affects any right of the issuer of a security to refuse:
(a) to acknowledge or register a person as the holder of a security; or
(b) to issue a security to a person;
on a ground other than an objection to the form of document, or electronic message or other electronic communication, that is lodged with or sent to the issuer and purports to transfer the security to the person.
1073F(5) [ Transfer in accordance with regulations]The registration of a transfer, or the issue, of a security by means of a transfer effected in accordance with regulations made for the purposes of this Division does not breach any law, constitution, trust deed or other instrument relating to financial products.
1073F(6) [ Other forms of transfer, modes of execution]Nothing in the provisions prevents or affects the use of:
(a) any other form of transfer of securities; or
(b) any other mode of executing a document transferring securities;
that is otherwise permitted by law.
1073F(7) [ Transfer of security by trustee or legal representative]A transfer of a security by or to a trustee or legal representative may be effected by means of a transfer in accordance with regulations made for the purposes of this Division. The transfer may be so effected despite the means required by any law or the provisions of the instrument (if any) creating, or having effect in relation to, the trust or will under which the trustee or legal representative is appointed.
1073F(8) [ ``legal representative'']In subsection (7):
(a) the executor, original or by representation, of a will of a dead person; or
(b) the administrator of the estate of a dead person.
This Division only applies in relation to particular financial products and a prescribed CS facility if regulations made for the purposes of this section provide that all financial products, or a class of financial products that includes the financial products, are financial products to which this Division applies in relation to the prescribed CS facility (whether or not they are also products to which this Division applies in relation to other prescribed CS facilities).
(Repealed by No 76 of 2023, s 3, Sch 2 [ 562] (effective 20 October 2023).) SECTION 1074C OPERATING RULES OF PRESCRIBED CS FACILITY MAY DEAL WITH TRANSFER OF TITLE 1074C(1) [ Transfer through facility]
The operating rules of a prescribed CS facility may deal with the transfer of financial products through the facility.
1074C(2) [ Way in which product transferred]Without limiting subsection (1), the operating rules of a prescribed CS facility may deal with the way in which a financial product may be transferred, including specifying:
(a) the financial products that may be transferred through the facility; and
(b) how financial products are transferred through the facility; and
(c) the person or body (if any) authorised to determine whether a transfer substantially complies with the operating rules of the facility. 1074C(3) [ No discretion]
Nothing in subsection (1) or (2) confers a discretion to deal with a matter in the operating rules of a prescribed CS facility if there is an obligation under section 822A for that matter to be dealt with in those rules.
If a transfer of a financial product is effected:
(a) through a prescribed CS facility; and
(b) in accordance with the operating rules of the facility;
the transfer is valid and effective for the purposes of any law or instrument governing or relating to the way in which the financial product may be transferred.
1074D(2) [ Transfer substantially complying with rules]For the purposes of this section, the transfer of a financial product is taken to be, and always to have been, effected in accordance with the operating rules of a prescribed CS facility if the person or body authorised to do so under those rules determines that the transfer substantially complies with those rules.
The regulations may make provision in relation to transfers of financial products effected:
(a) through a prescribed CS facility; and
(b) in accordance with the operating rules of the facility. 1074E(2) Regulations may make provision in relation to the transfer of financial products.
(a) the legal effect of a transfer of a financial product through the facility in accordance with its operating rules; and
(b) the rights, liabilities and obligations of a person in relation to the transfer of a financial product through the facility, including the rights, liabilities and obligations of:
(i) the transferor and transferee; and
(ii) any other person involved in the transfer; and
(c) the circumstances in which a person will be taken to be involved in the transfer of a financial product for the purposes of the regulations; and
(d) the circumstances in which a person is required not to register, or give effect to, a transfer through the facility; and
(e) the circumstances in which a person is required not to refuse or fail to register, or give effect to, a transfer through the facility; and
(f) the circumstances in which a transfer through the facility will be taken to have been made in accordance with the rules of a prescribed CS facility; and
(g) the circumstances in which a person will be taken to be the holder of a financial product for the purposes of:
(i) a meeting; or
(ii) paying or transferring money or property to a person because the person holds or held a financial product; or
(iii) issuing a financial product to a person because the person holds or held a financial product; or
1074E(3) Rights and liabilities in relation to transfer.
(iv) conferring a right on a person because the person holds or held a financial product.
Without limiting paragraph (2)(b), the regulations may provide that a person:
(a) is taken to have:
(i) agreed to do, to accept or to be bound by a particular thing; or
(ii) done a particular thing; or
(iii) given particular warranties; or
(iv) done particular things on behalf of another person; or
(b) is taken to be authorised to do particular things on behalf of another person (even if the person has died); or
(c) is taken to be bound by a particular act; or
(d) is liable to indemnify another person against particular loss or damage; or
(e) is entitled to assume a particular matter without inquiry. 1074E(4) Person involved in transfer.
Without limiting paragraph (2)(c), the regulations may provide for any of the following to be taken to be involved in a transfer of a financial product:
(a) a person who carries on a financial services business and who arranges for the transfer;
(b) a person who operates a financial market on which the financial product is sold;
(c) a person who operates a licensed CS facility through which the product is transferred;
(d) the issuer of the product;
(e) an associate of a person who is involved in the transfer.
The regulations may specify the circumstances in which a person will be taken to be an associate of another person for the purposes of the regulations.
1074E(5) Offences.Without limiting subsection (2), the regulations may provide for offences in relation to:
(a) the lodgment of a transfer document or title document for a financial product with the issuer of the product; or
(b) the use of identifying codes in relation to transfers of financial products; or
(c) contraventions of the operating rules of a prescribed CS facility. 1074E(6) Civil liability.
(a) provide for the liability of a person who contravenes the operating rules of a prescribed CS facility to compensate a person for loss or damage the person suffers because of the conduct engaged in in contravention of those rules; and
(b)specify the period within which an action for compensation must be begun. 1074E(7) [ Liability under any other law]
The regulations do not affect a liability that a person has under any other law.
1074E(8) Jurisdiction.The regulations may apply to conduct engaged in in this jurisdiction or elsewhere.
If: (a) a person contravenes the provisions of a prescribed CS facility ' s operating rules that deal with:
(i) the cancellation of documents of title to financial products transferred through the facility; and
in relation to the transfer of a particular financial product through the facility; and (b) the issuer of the financial product is not involved in the contravention;
(ii) matters incidental to the cancellation of those documents;
the issuer is not liable to an action or other proceeding for damages in relation to the person's contravention.
This section deals with the effect of the provisions of:
(a) this Division; and
(b) the regulations made for the purposes of this Division. 1074G(2) [ Paramountcy]
The provisions apply in relation to a transfer of financial products despite anything to the contrary in:
(a) this Act (other than this Division); or
(b) another law, or instrument, relating to the transfer of the financial products. 1074G(3) [ Terms and conditions of sale otherwise unaffected]
Except as provided in the provisions, the provisions do not affect the terms and conditions on which financial products are sold.
1074G(4) [ Issuer's right to refuse to register, etc]Nothing in the provisions (other than in regulations made for the purpose of paragraph 1074E(2) (e)) affects any right of the issuer of a financial product to refuse:
(a) to acknowledge or register a person as the holder of a financial product; or
(b) to issue a financial product to a person;
on a ground other than an objection to the form of document, or electronic message or other electronic communication, that is lodged with or sent to the issuer and purports to transfer the financial product to the person.
1074G(5) [ Transfer in accordance with operating rules]The registration of a transfer, or the issue, of a financial product by means of a transfer effected in accordance with the operating rules of a prescribed CS facility does not breach any law, constitution, trust deed or other instrument relating to financial products.
1074G(6) [ Other forms of transfer, modes of execution]Nothing in the provisions (other than in regulations made for the purpose of paragraph 1074E(2) (d)) prevents or affects the use of:
(a) any other form of transfer of financial products; or
(b) any other mode of executing a document transferring financial products;
that is otherwise permitted by law.
1074G(7) [ Transfer by trustee or legal representative]A transfer of a financial product by or to a trustee or legal representative may be effected by means of a transfer in accordance with the operating rules of a prescribed CS facility despite any law or the provisions of the instrument (if any) creating, or having effect in relation to, the trust or will under which the trustee or legal representative is appointed.
1074G(8) [ ``legal representative'']In subsection (7):
(a) the executor, original or by representation, of a will of a dead person; or
(b) the administrator of the estate of a dead person.
(a) exempt specified financial products, or a specified class of financial products, from a provision of this Part; or
(b) declare that this Part applies to specified financial products, or a specified class of financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.
ASIC's power to grant an exemption or make a declaration under this section may be exercised in relation to financial products, or a class of financial products, only if ASIC is satisfied that:
(a) if the exemption were granted or the declaration were made, the interests of the holders of those financial products, or of financial products in that class, would continue to have adequate protection; and
(b) the granting of the exemption or the making of the declaration would make the transfer of those financial products, or of financial products in that class, more efficient.
The exemption or declaration may:
(a) apply to all or specified provisions of this Part; and
(b) apply to all persons, specified persons, or a specified class of persons; and
(c) relate to all financial products, specified financial products or a specified class of financial products; and
(d) relate to any other matter generally or as specified.
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
The exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette .
If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a) the text of the declaration was made available by ASIC on the internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
For the purposes of this section, the provisions of this Part include:
(a) definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate to provisions of this Part.
Note: Because of section 761H , a reference to this Part or Part 10.2 also includes a reference to regulations or other instruments made for the purposes of this Part or Part 10.2 (as the case requires).
[ CCH Note: The next section is s 1100A.]