Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.6 - EXTERNAL ADMINISTRATION AND DEREGISTRATION  

Division 1 - Preliminary  

SECTION 1235   CONSTRUING TERMS AND EXPRESSIONS AFFECTED BY SUBSTITUTED REFERENCES  

Terms or expressions that have a particular meaning in relation to a sub-fund

1235(1)    
To avoid doubt, if:

(a)    a term or expression has a particular meaning in this Act in relation to a sub-fund of a CCIV; and

(b)    the term or expression occurs in a provision, in relation to a reference (including an implied reference) that is required by this Part to be substituted with a reference to a sub-fund;

then the meaning the term or expression has in relation to the sub-fund in the provision is the meaning referred to in paragraph (a) .

Note: Examples of terms or expressions that have a particular meaning in relation to a sub-fund of a CCIV include the following:

(a) contributory (see section 9 );

(b) creditor and secured creditor (see section 9 );

(c) deregister (see Division 9 of this Part);

(d) extraordinary resolution (see section 9 );

(e) member (see section 1222Q );

(f) property (see subsection 51F(3) );

(g) solvent and insolvent (see section 1231A );

(h) special resolution (see section 9 ).

Terms or expressions that do not have a particular meaning in relation to a sub-fund

1235(2)    
If:

(a)    a term or expression has a particular meaning in this Act or in a provision of this Act in relation to a company, corporation or body corporate; and

(b)    because of a reference (including an implied reference) that is required by this Part to be substituted with a reference to a sub-fund, it is necessary to determine the meaning of the term or expression in relation to a sub-fund of a CCIV; and

(c)    the term or expression does not have a particular meaning in relation to a sub-fund of a CCIV;

then the meaning the term or expression has in relation to the sub-fund is the meaning the term or expression would have in relation to the CCIV if the CCIV had no other sub-funds.

Note: For example, the term related entity is defined in section 9 in relation to a body corporate, and is not defined in relation to a sub-fund of a CCIV. To determine whether a person is a related entity of a sub-fund:

(a) first, assume that the CCIV has no other sub-funds (this includes disregarding any shares held by the CCIV that are assets of other sub-funds of the CCIV); and

(b) then, apply the definition of related entity in section 9 to the CCIV based on that assumption.

As a result, a member of the CCIV (paragraph (d) of the definition of related entity ) will only be a related entity of a sub-fund of the CCIV if the person is a member of the sub-fund.

Division 2 - Arrangements and reconstructions of sub-funds  

SECTION 1235A  

1235A   OBJECT OF THIS DIVISION  

The object of this Division is to provide for arrangements and reconstructions of sub-funds of CCIVs to occur in the same way that arrangements and reconstructions of Part 5.1 bodies occur.

SECTION 1235B  

1235B   COMPROMISES ETC. NOT TO BE MADE BETWEEN 2 OR MORE SUB-FUNDS  

The Court may not approve a compromise or arrangement between a CCIV and:

(a)    the creditors of 2 or more sub-funds of a CCIV; or

(b)    the members of 2 or more sub-funds of a CCIV.

Note: However, the Court may approve a further compromise or arrangement between the CCIV and another sub-fund. If this is done as part of a scheme for the amalgamation or reconstruction of a sub-fund or sub-funds, the Court may make appropriate orders: see section 1235E .

SECTION 1235C   APPLYING ARRANGEMENTS AND RECONSTRUCTIONS PROVISIONS TO SUB-FUNDS  

1235C(1)    
If a compromise or arrangement is proposed between a CCIV and the creditors of a sub-fund or any class of them, or between a CCIV and the members of a sub-fund or any class of them, the arrangements and reconstructions provisions referred to in subsection (2) apply to the proposed compromise or arrangement subject to:

(a)    such modifications as are set out in this Division; and

(b)    such other modifications as are made necessary by the fact that the CCIV is proposing to enter into a compromise or arrangement relating to only one sub-fund of the CCIV.

Arrangements and reconstructions provisions

1235C(2)    
The provisions (the arrangements and reconstructions provisions ) are as follows:

(a)    Part 5.1 (other than a provision excluded by subsection (3) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (3) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

1235C(3)    
For the purposes of subsection (2) , the provisions excluded from the arrangements and reconstructions provisions are as follows:

(a)    section 410 ;

(b)    subsections 411(1A) , (1B) and (1C) ;

(c)    a provision prescribed by regulations made for the purposes of this paragraph.

Translation rules

1235C(4)    
In the application of the arrangements and reconstructions provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the Part 5.1 body (the relevant body ) (whether the reference is express or implied, and (if the reference is express) whether the Part 5.1 body is referred to as a Part 5.1 body, a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (5) and (6) )
2	refers to the directors, or a director, of the relevant body	each of the following:
		(a)	the corporate director;
		(b)	a director of the corporate director
3	refers to an officer of the relevant body	each of the following:
		(a)	a director of the CCIV;
		(b)	a person covered by paragraph (b) , (c) or (d) of the definition of officer of a CCIV in section 1224B in relation to the sub-fund
4	refers to shares in the relevant body	shares referable to the sub-fund
5	refers to debentures of the relevant body	debentures referable to the sub-fund

Note: For item 2 - for example, the draft explanatory statement provided for in subsection 411(2) must state any material interests of the corporate director and of the directors of the corporate director.

1235C(5)    
Despite item 1 of the table in subsection (4) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

Note 1: For example, references to the Part 5.1 body, in the context of the body as a party to a compromise or arrangement, are references to the CCIV, because the CCIV is the legal person that is a party to, and that is bound by, the compromise or arrangement.

Note 2: For example, references to the Part 5.1 body, in the context of identifying a liquidator, are references to the sub-fund, because winding up of a CCIV takes place at the sub-fund level.

1235C(6)    
If a reference in a provision to the relevant body is, as a result of subsection (5) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

SECTION 1235D  

1235D   PERSONS NOT TO BE APPOINTED TO ADMINISTER COMPROMISE OR ARRANGEMENT  

Subsection 411(7) has effect in relation to a CCIV as if the persons referred to in that subsection included a person who holds money or property of the CCIV.

SECTION 1235E   PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF SUB-FUNDS WITHIN A CCIV  

1235E(1)    
If:

(a)    a compromise or arrangement is proposed for the purposes of, or in connection with, a scheme for the reconstruction of a sub-fund or sub-funds or the amalgamation of 2 or more sub-funds; and

(b)    under the scheme, the whole or any part of the undertaking or of the property of a sub-fund concerned in the scheme (the transferor sub-fund ) is to become a part of the undertaking or of the property of another sub-fund of the same CCIV;

the Court may by order provide for any of the matters referred to in subsection 413(1) as if the other sub-fund were the transferee company referred to in that subsection.

1235E(2)    
Nothing in this section limits the orders a Court may make under section 413 if it approves a compromise or arrangement relating to a sub-fund of a CCIV.

SECTION 1235F  

1235F   COURT MAY MAKE ORDER IN RELATION TO ASSETS AND LIABILITIES OF SUB-FUNDS  

If a Court approves a compromise or arrangement between a CCIV and the creditors of a sub-fund or any class of them, or between a CCIV and the members of a sub-fund or any class of them, the Court may also make any order it considers appropriate in relation to the assets and liabilities of the sub-fund.

Division 3 - Receivers, and other controllers, of property of sub funds  

Subdivision A - Preliminary  

SECTION 1236  

1236   OBJECT OF THIS DIVISION  

The object of this Division is to preserve the segregated application of assets of sub-funds by requiring appointments of controllers to be made separately in respect of the property of each sub-fund of the CCIV.

SECTION 1236A  

1236A   MEANING OF PROPERTY AND RECEIVER - SUB-FUND OF A CCIV  

In this Division:

property
, in relation to a sub-fund of a CCIV, means property in Australia or outside Australia.

receiver
, in relation to property of a sub-fund of a CCIV, includes a receiver and manager.

Subdivision B - Appointment of controllers  

SECTION 1236B   APPOINTMENT OF A CONTROLLER OF PROPERTY OF A SUB-FUND OF A CCIV  

1236B(1)    
An appointment covered by subsection (2) :

(a)    may not be made in relation to all the property of a CCIV; and

(b)    may be made only in relation to property of a CCIV that is property of a particular sub-fund of the CCIV.

1236B(2)    
The appointments covered by this subsection are appointments, whether made under a power contained in an instrument, or by a Court, of a person to act as a:

(a)    receiver; or

(b)    receiver and manager; or

(c)    controller;

of property of the CCIV.

Note: A Court may appoint a receiver under section 233 , 283HB , 1101B or 1323 .

SECTION 1236C   PERSONS NOT TO ACT AS RECEIVERS  

1236C(1)    
A person is not qualified to be appointed, and must not act, as receiver of property of a sub-fund of a CCIV if the person:

(a)    is a secured party in relation to any property (including PPSA retention of title property) of the sub-fund; or

(b)    is the corporate director of the CCIV; or

(c)    is a person who holds money or property of the CCIV; or

(d)    is an auditor of the CCIV or the sub-fund; or

(e)    is a director, secretary, senior manager or employee of a body corporate that is a secured party in relation to any property (including PPSA retention of title property) of the sub-fund; or

(f)    is not a registered liquidator; or

(g)    is a director, secretary, senior manager or employee of:

(i) the corporate director; or

(ii) a body corporate related to the corporate director; or

(iii) a body corporate related to the CCIV; or

(h)    unless ASIC directs in writing that this paragraph does not apply in relation to the person in relation to the sub-fund of the CCIV - has at any time within the last 12 months been:

(i) a corporate director or promoter of the CCIV; or

(ii) a director, secretary, senior manager, employee or promoter of the corporate director or a related body corporate of the CCIV or the corporate director.

1236C(2)    
Paragraph (1)(f) does not apply in relation to a body corporate authorised by or under a law of the Commonwealth, of a State or of a Territory to act as receiver of property of the sub-fund concerned.

1236C(3)    
Section 418 does not apply to a CCIV.

1236C(4)    
In this section:

senior manager
does not include a receiver and manager.

SECTION 1236D  

1236D   NOTIFYING OF APPOINTMENT OR CESSATION OF CONTROLLER  

If:

(a)    a person (the controller ) is appointed as, or ceases to be, the controller of property of a sub-fund of a CCIV; and

(b)    one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;

the controller must, as soon as practicable, and in any event within 3 business days after the controller ' s appointment or cessation, notify each such person in writing of the appointment or cessation.

Subdivision C - Application of Part 5.2 to control of property of sub-funds  

SECTION 1236E   APPLYING PART 5.2 ETC. TO SUB-FUNDS  

1236E(1)    
The controller provisions referred to in subsection (2) apply to a CCIV with:

(a)    the modifications set out in this Division; and

(b)    such other modifications as are made necessary by the fact that the provisions are applying to a sub-fund instead of to a corporation.

Controller provisions

1236E(2)    
The provisions (the controller provisions ) are as follows:

(a)    Part 5.2 and Division 2B of Part 5.7B (other than a provision excluded by subsection (3) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (3) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

1236E(3)    
For the purposes of subsection (2) , the provisions excluded from the controller provisions are as follows:

(a)    section 416 ;

(b)    section 418 ;

(c)    a provision prescribed by regulations made for the purposes of this paragraph.

Note: Section 1236C applies instead of section 418 .

Translation rules

1236E(4)    
In the application of the controller provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the corporation (the relevant corporation ) in relation to whose property a controller has been, or is to be appointed (whether the reference is express or implied, and (if the reference is express) whether the corporation is referred to as a corporation, a company, a body corporate, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (5) and (6) )
2	refers to the directors, or a director, or the board of the relevant corporation	the corporate director of the CCIV
3	refers to an officer of the relevant corporation	each of the following:
		(a)	a director of the CCIV;
		(b)	a person covered by paragraph (b) , (c) or (d) of the definition of officer of a CCIV in section 1224B in relation to the sub-fund
4	refers to shares in the relevant corporation	shares referable to the sub-fund
5	refers to debentures of the relevant corporation	debentures referable to the sub-fund

1236E(5)    
Despite item 1 of the table in subsection (4) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

1236E(6)    
If a reference in a provision to the relevant corporation is, as a result of subsection (5) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

Subdivision D - Modified duties and powers of receivers etc.  

SECTION 1236F   LIABILITY OF CONTROLLER  

1236F(1)    
Section 1224M (about extended liability for acts of agents) does not apply to a person who, as agent for the CCIV, enters into possession or assumes control of any property of a sub-fund of the CCIV for the purposes of enforcing any security interest.

1236F(2)    
Subsection (1) does not affect the application of section 419 .

SECTION 1236G  

1236G   POWERS OF RECEIVER  

If:

(a)    a receiver is appointed in respect of property of a sub-fund of a CCIV; and

(b)    one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;

the powers conferred under section 420 on the receiver are taken to include the power to instruct each such person in relation to dealing with the assets of the sub-fund.

SECTION 1236H  

1236H   CONTROLLER MAY REQUIRE REPORTS RELATING TO OTHER SUB-FUNDS IF NECESSARY  

The affairs of a CCIV about which a controller of property of a sub-fund of the CCIV may require a report under section 430 include:

(a)    the affairs of the sub-fund; and

(b)    the affairs of any other sub-fund, to the extent the information about those affairs is required by the controller for the purpose of attaining the objectives for which the controller was appointed.

SECTION 1236J  

1236J   CONTROLLER MAY INSPECT BOOKS OF CCIV  

The books of a CCIV that a controller of property of a sub-fund of the CCIV is entitled under section 431 to inspect at any reasonable time include:

(a)    the allocation register kept by the corporate director under section 1233C (about the allocation of assets and liabilities to sub-funds); and

(b)    any books of the CCIV, to the extent the inspection of those books is necessary for the purpose of attaining the objectives for which the controller was appointed.

Note: A person entitled to inspect a book may make copies or take extracts: see subsection 1300(3) .

Subdivision E - Other modifications  

SECTION 1236K  

1236K   APPLICATION OF SUB-FUND PROPERTY TO MEET CERTAIN PRIORITY PAYMENTS  

If a receiver is appointed in respect of property of a sub-fund of a CCIV, the assets of the sub-fund may be applied for the purposes of paying debts or amounts that, under section 433 , must be paid in priority to any claim for principal or interest in respect of the debentures referred to in that section.

SECTION 1236L   TRANSFER OF BOOKS TO ASIC ETC.  

1236L(1)    
Before ASIC destroys, in accordance with subsection 422D(9) , books relating to the control of property of a sub-fund of a CCIV, ASIC must notify the CCIV that it intends to do so.

1236L(2)    
Despite subsection 422D(9) , if:

(a)    ASIC retains books under subsection 422D(8) in relation to the control of property of a sub-fund of a CCIV; and

(b)    the retention period mentioned in that subsection ends; and

(c)    the CCIV, by resolutionof the corporate director, directs ASIC not to destroy the books;

ASIC must, as soon as practicable, transfer possession or control of those books to the CCIV.

Division 4 - Administration and restructuring  

SECTION 1236M  

1236M   PART 5.3A DOES NOT APPLY TO A CCIV  

Part 5.3A (about the administration of a company ' s affairs with a view to executing a deed of company arrangement) does not apply to a CCIV or a sub-fund of a CCIV.

SECTION 1236N  

1236N   PART 5.3B DOES NOT APPLY TO A CCIV  

Part 5.3B (about restructuring a company) does not apply to a CCIV or a sub-fund of a CCIV.

Division 5 - Winding up of sub funds  

Subdivision A - Preliminary  

SECTION 1237  

1237   OBJECT OF THIS DIVISION  

The object of this Division is to preserve the segregated application of assets of sub-funds by requiring a separate winding up procedure for each sub-fund.

SECTION 1237A  

1237A   NO WINDING UP OF A CCIV  

A CCIV cannot be wound up, or placed in liquidation.

Note: If a CCIV has no sub-funds, ASIC must deregister the CCIV: see section 1239K .

Subdivision B - Application of winding up provisions to winding up of sub-funds  

SECTION 1237B   APPLYING WINDING UP PROVISIONS TO SUB-FUNDS  

1237B(1)    
An application to wind up a sub-fund of a CCIV, and the winding up of a sub-fund of a CCIV, are regulated:

(a)    by the provisions of this Division; and

(b)    by the winding up provisions referred to in subsection (2) , applying, so far as they are capable of so doing, subject to:

(i) such modifications as are set out in this Division; and

(ii) such other modifications as are made necessary by the fact that the provisions are applying to a sub-fund instead of to a company.

Winding up provisions

1237B(2)    
The provisions (the winding up provisions ) are as follows:

(a)    sections 53 and 91 , paragraph 233(1)(a) , Parts 5.4 , 5.4A , 5.4B , 5.5 and 5.6 , Divisions 2 and 2A of Part 5.7B and Schedule 2 (other than a provision excluded by subsection (3) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (3) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

Note 1: Parts 5.8 and 5.9 also apply to CCIVs with modifications: see Divisions 8 and 9 of this Part.

Note 2: Part 5.4C does not apply to CCIVs or sub-funds of CCIVs.

1237B(3)    
For the purposes of subsection (2) , the provisions excluded from the winding up provisions are as follows:

(a)    section 459T ;

(b)    Subdivision B of Division 3 of Part 5.5 (about simplified liquidation process);

(c)    Division 8 of Part 5.6 (about pooling);

(d)    a provision prescribed by regulations made for the purposes of this paragraph.

Translation rules

1237B(4)    
In the application of the winding up provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the company (the relevant company ) that is being, is to be, or has been wound up, or is the subject of an application for a winding up order (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (5) and (6) )
2	refers to the directors, or a director, or the board of the relevant company	the corporate director of the CCIV
3	refers to an officer of the relevant company	each of the following:
		(a)	a director of the CCIV;
		(b)	a person covered by paragraph (b) , (c) or (d) of the definition of officer of a CCIV in section 1224B in relation to the sub-fund
4	refers to shares in the relevant company	shares referable to the sub-fund
5	refers to debentures of the relevant company	debentures referable to the sub-fund
6	refers to a general meeting, in relation to the relevant company (other than a reference to the company in general meeting)	a members ' meeting of the sub-fund (see section 1228B )
7	refers to the relevant company in general meeting	the members of the sub-fund at a members ' meeting of the sub-fund
8	refers to the incorporation of the relevant company	the registration of the sub-fund

Note 1: Item 1 - for example, in paragraph 459P(1)(b) there is an implied reference to " of the company " after " a creditor " , and in paragraph 459P(1)(c) there is an implied reference to " of the company " after " a contributory " . For a CCIV, both these implied references would be substituted with implied references to " of the sub-fund " .

Note 2: Item 4 - for example, if the winding up of a sub-fund of a CCIV commences, section 468A will operate to void a transfer of shares in the CCIV only if the shares are referable to the sub-fund.

Note 3: Item 7 - for example, subsection 495(1) requires the members of the sub-fund to appoint a liquidator or liquidators.

1237B(5)    
Despite item 1 of the table in subsection (4) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

Note 1: For example, the references in paragraphs 459P(1)(a) and 462(2)(a) to " the company " are taken to be references to " the CCIV " because an application to the Court would be made by the legal person that is the CCIV.

Note 2: For example, the reference in subsection 461(2) to " A company must lodge " is taken to be a reference to " The CCIV must lodge " because the lodging of documents with ASIC would be done by the legal person that is the CCIV.

Note 3: For example, the reference in section 493 to the " corporate state and corporate powers of the company " is a reference to the " corporate state and corporate powers of the CCIV " .

1237B(6)    
If a reference in a provision to the relevant company is, as a result of subsection (5) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

Note: For example, the first reference in paragraph 471B(a) to " the company " is a reference to the CCIV, because only a legal person can be a party to a proceeding in a court. However, the operation of section 471B to prevent proceedings against the CCIV is confined to proceedings that relate to the sub-fund.

SECTION 1237C  

1237C   REFERENCES TO DEBTS ETC. OF A SUB-FUND  

For the purposes of the application of the winding up provisions, as those provisions apply subject to item 1 of the table in subsection 1237B(4) :

(a)    a debt of the CCIV is taken to be a debt of a sub-fund to the extent (if any) that the debt is a liability of the sub-fund; and

(b)    a claim against the CCIV is taken to be a claim against a sub-fund of the CCIV to the extent (if any) that the claim is a liability of the sub-fund.

Note: A reference to a liability of a sub-fund of a CCIV includes debts and claims: see section 1233A .

Subdivision C - Winding up of a sub-fund in insolvency  

SECTION 1237D  

1237D   WHEN A SUB-FUND IS PRESUMED TO BE INSOLVENT  

Paragraph 459C(2)(a) is taken to be satisfied in relation to a sub-fund of a CCIV if:

(a)    the CCIV failed (as defined by section 459F ) to comply with a statutory demand; and

(b)    the failure affects the sub-fund (see subsection 1237E(3) ).

SECTION 1237E   STATUTORY DEMAND - CREDITOR MAY SERVE DEMAND ON CCIV  

1237E(1)    
A person may serve a statutory demand on a CCIV under section 459E .

1237E(2)    
However, subsection 459E(2) applies to a statutory demand served on a CCIV as if it also required the demand to specify, in relation to each debt to which the demand relates:

(a)    the sub-fund or sub-funds of the CCIV of which the debt is a liability; and

(b)    if the debt is a liability of 2 or more sub-funds of the CCIV - the proportion of the debt allocated to each sub-fund at the time the demand is served.

1237E(3)    
Whether a CCIV has failed to comply with a statutory demand is determined under section 459F . If the CCIV has failed to comply with a statutory demand, the failure affects each sub-fund specified in the demand.

Note: The sub-funds specified may be affected by a variation made by the Court under subsection 1237H(3) .

SECTION 1237F   STATUTORY DEMAND - CCIV MAY APPLY TO SET ASIDE DEMAND  

1237F(1)    
A CCIV may apply to the Court under section 459G for an order setting aside a statutory demand served on the CCIV.

1237F(2)    
Division 3 of Part 5.4 applies in relation to the application subject to the modifications set out in sections 1237G to 1237J .

SECTION 1237G   STATUTORY DEMAND - DETERMINING APPLICATION TO SET ASIDE WHERE THERE IS A DISPUTE OR OFFSETTING CLAIM  

1237G(1)    
Paragraph 459H(1)(b) applies in relation to a debt to which a demand relates only if the CCIV has an offsetting claim that is an asset of the sub-fund of which the debt or a proportion of the debt (as the case requires) is a liability.

1237G(2)    
Subsection 459H(2) has effect as if it required the Court to calculate a separate substantiated amount in relation to each sub-fund specified in the statutory demand.

1237G(3)    
For the purposes of the calculation:

(a)    the amount of the debt is to be determined having regard only to a debt or a proportion of a debt (as the case requires) that is a liability of the sub-fund; and

(b)    the amount of an offsetting claim is to be determined having regard only to so much of an offsetting claim as is an asset of the sub-fund.

SECTION 1237H   STATUTORY DEMAND - DETERMINING APPLICATION TO SET ASIDE WHERE THERE IS A DISPUTE ABOUT THE SUB-FUND  

1237H(1)    
This section applies if:

(a)    a CCIV applies under section 459G for an order setting aside a statutory demand served on the CCIV; and

(b)    within the statutory period referred to in subsection 459G(3) :

(i) a notice complying with subsection (6) is filed with the Court; and

(ii) a copy of the notice is served on the person who served the demand on the CCIV; and

(c)    the information specified in the notice about a debt is not the same as the information specified in the demand about the debt; and

(d)    section 459H does not apply.

1237H(2)    
The Court must determine the following information for the debt:

(a)    the sub-fund or sub-funds of the CCIV of which the debt is a liability;

(b)    if the debt is a liability of 2 or more sub-funds of the CCIV - the proportion of the debt allocated to each sub-fund.

1237H(3)    
If the information determined by the Court under subsection (2) is different from the information specified in the demand, the Court may make an order:

(a)    varying the demand as specified in the order; and

(b)    declaring the demand to have had effect, as so varied, as from when the demand was served on the CCIV.

The order may be made subject to conditions.

1237H(4)    
This section has effect subject to section 459J .

1237H(5)    
Section 459L has effect as if the orders referred to in that section included an order under this section.

1237H(6)    
A notice complies with this subsection in relation to a statutory demand if the notice specifies the following information for each debt to which the demand relates:

(a)    the sub-fund or sub-funds of the CCIV of which the debt is a liability;

(b)    if the debt is a liability of 2 or more sub-funds of the CCIV - the amount of the debt allocated to each sub-fund.

SECTION 1237J   SUBSTITUTION OF SUB-FUND WHERE STATUTORY DEMAND NOT RELIED ON  

1237J(1)    
This section applies if:

(a)    a creditor applies under section 459P for a sub-fund of the CCIV to be wound up in insolvency; and

(b)    the application does not rely on a failure by the CCIV to comply with a statutory demand.

1237J(2)    
The Court may by order substitute, in an application under section 459P , the sub-fund or sub-funds of the CCIV in respect of which the application is made.

1237J(3)    
The Court may only make an order if:

(a)    a notice complying with subsection (5) is filed with the Court; and

(b)    the Court thinks it is appropriate to do so.

1237J(4)    
After the order is made, the application has effect, and may be proceeded with, as if the substituted sub-fund or sub-funds had been the original sub-fund or sub-funds.

1237J(5)    
A notice complies with this subsection in relation to a creditor if the notice specifies the following information for each of the creditor ' s debts:

(a)    the sub-fund or sub-funds of the CCIV of which the debt is a liability;

(b)    if the debt is a liability of 2 or more sub-funds of the CCIV - the amount of the debt allocated to each sub-fund.

SECTION 1237K  

1237K   DECLARATION OF SOLVENCY  

A written declaration under section 494 about the affairs of a sub-fund may be made by the corporate director of the CCIV.

Subdivision D - Modified duties and powers of liquidator of a sub-fund  

SECTION 1237L  

1237L   DISQUALIFICATION OF LIQUIDATOR  

Paragraph 532(2)(c) has effect in relation to a sub-fund of a CCIV as if the persons referred to in that paragraph included the following:

(a)    a director of the corporate director of the CCIV;

(b)    a person (if any), other than the CCIV, who holds assets of the sub-fund.

SECTION 1237M   NOTIFYING OF APPOINTMENT, RESIGNATION OR REMOVAL OF LIQUIDATOR  

1237M(1)    
If:

(a)    a liquidator of a sub-fund of a CCIV is appointed, resigns or is removed from office; and

(b)    one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;

the liquidator must, as soon as practicable, and in any event within 3 business days after the liquidator ' s appointment, resignation or removal,notify each such person in writing of the appointment, resignation or removal.

1237M(2)    
In this section:

liquidator
includes a provisional liquidator.

SECTION 1237N   DUTIES AND POWERS OF LIQUIDATOR  

Liquidator ' s powers relate only to the sub-fund

1237N(1)    
The functions and powers of a liquidator of a sub-fund of a CCIV:

(a)    include functions and powers conferred on the liquidator of a sub-fund of a CCIV by a provision of this Chapter; and

(b)    to the extent those functions and powers are conferred on the liquidator by the winding up provisions referred to in subsection 1237B(2) , as those provisions apply under this Division, extend only to matters that relate solely to the carrying on of the business of the sub-fund.

1237N(2)    
However, the books of a CCIV that a liquidator of a sub-fund is entitled under subsection 477(3) to inspect at any reasonable time include:

(a)    the allocation register kept by the corporate director under section 1233C (about the allocation of assets and liabilities to sub-funds); and

(b)    any other books of the CCIV, to the extent the inspection of those books is necessary for the liquidator to perform or exercise the functions or powers of that office.

Note 1: A person entitled to inspect a book may make copies or take extracts: see subsection 1300(3) .

Note 2: A provisional liquidator also has the power under subsection 477(3) : see paragraph 472(4)(b) .

Liquidator may instruct person who holds assets of a sub-fund

1237N(3)    
If:

(a)    a liquidator of a sub-fund of a CCIV is appointed; and

(b)    one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;

the powers conferred on the liquidator are taken to include the power to instruct each such person in relation to dealing with the assets of the sub-fund.

Liquidator may inspect certain books

1237N(4)    
If:

(a)    a liquidator of a sub-fund of a CCIV is appointed; and

(b)    one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;

the liquidator is entitled to inspect at any reasonable time books of each such person, to the extent the inspection of those books is necessary for the liquidator to perform or exercise the functions or powers of that office.

Note: A person entitled to inspect a book may make copies or take extracts: see subsection 1300(3) .

Definitions

1237N(5)    
In this section:

liquidator
includes a provisional liquidator.

SECTION 1237P   RETENTION AND DESTRUCTION OF BOOKS  

1237P(1)    
The following provisions do not apply in relation to a winding up of a sub-fund:

(a)    subsection 70-35(3) of Schedule 2 (about when an external administrator is not required to retain books);

(b)    subsection 70-35(4) of Schedule 2 (about when an external administrator may destroy books).

Liquidator must transfer books to CCIV

1237P(2)    
If:

(a)    books are retained under section 70-35 of Schedule 2 by a liquidator of a sub-fund in relation to a winding up of the sub-fund; and

(b)    the retention period mentioned in subsection 70-35(1) of that Schedule ends; and

(c)    before the end of the retention period, the CCIV requests the liquidator by notice in writing to transfer possession or control of the books to the CCIV;

the liquidator must, as soon as practicable after the end of the retention period, transfer possession or control of those books to the CCIV.

1237P(3)    
Otherwise, the books may be destroyed at the end of the retention period.

Offence

1237P(4)    
A person commits an offence if:

(a)    the person is subject to a requirement under subsection (2) ; and

(b)    the person intentionally or recklessly fails to comply with the requirement.

Subdivision E - Modified duties and powers of officers of corporate director and CCIV  

SECTION 1237Q   OFFICERS OF CORPORATE DIRECTOR TO HELP LIQUIDATOR  

1237Q(1)    
Section 530A applies as if each of the following were an officer of a CCIV:

(a)    an officer of the CCIV;

(b)    an officer of the corporate director of the CCIV;

(c)    an officer of a former corporate director of the CCIV.

1237Q(2)    
Paragraph (1)(a) is included for the avoidance of doubt.

1237Q(3)    
In this section:

officer
includes former officer.

SECTION 1237R   CORPORATE DIRECTOR MAY RETAIN CERTAIN BOOKS  

1237R(1)    
The corporate director of a CCIV is entitled, as against a liquidator of a sub-fund of the CCIV, to retain possession of books of the CCIV that relate to:

(a)    the business or affairs of the CCIV as a whole; or

(b)    the business or affairs of other sub-funds of the CCIV.

Note: Books that the corporate director is not entitled to retain must be delivered to the liquidator: see section 530A .

1237R(2)    
Subsection (1) applies despite subsection 530B(1) .

1237R(3)    
In this section:

liquidator
includes a provisional liquidator.

SECTION 1237S  

1237S   CORPORATE DIRECTOR MAY ACCESS CERTAIN BOOKS  

The corporate director of a CCIV is entitled to inspect at any reasonable time books relating to the winding up of a sub-fund of the CCIV, to the extent the inspection of those books is necessary for the corporate director to perform or exercise the functions or powers of that office.

Note: A person entitled to inspect a book may make copies or take extracts: see subsection 1300(3) .

SECTION 1237T   CORPORATE DIRECTOR MAY DIRECT ASIC NOT TO DESTROY BOOKS  

1237T(1)    
Before ASIC destroys, in accordance with subsection 70-31(9) of Schedule 2 , books relating to the winding up of a sub-fund of a CCIV, ASIC must notify the CCIV that it intends to do so.

1237T(2)    
Despite subsection 70-31(9) of Schedule 2 , if:

(a)    ASIC retains books under subsection 70-31(8) of Schedule 2 in relation to the winding up of a sub-fund of a CCIV; and

(b)    the retention period mentioned in that subsection ends; and

(c)    the CCIV, by resolution of the corporate director, directs ASIC not to destroy the books;

ASIC must, as soon as practicable, transfer possession or control of those books to the CCIV.

SECTION 1237U   MANDATORY EXAMINATION  

1237U(1)    
Section 596A applies in relation to a CCIV as if the following were officers of the CCIV:

(a)    a natural person who is an officer of the CCIV;

(b)    a natural person who is a director of the corporate director of the CCIV.

1237U(2)    
Paragraph (1)(a) is included for the avoidance of doubt.

SECTION 1237V  

1237V   COURT MAY MAKE ORDER IMPOSING LIABILITY ON UNLICENSED PERSON OPERATING CCIV  

Where:

(a)    a sub-fund of a CCIV is being wound up; and

(b)    within the period of 4 years ending before the relation-back day, a person not meeting the requirements in subsection 1224F(1) for the director of a CCIV operated the business and conducted the affairs of the CCIV;

the Court may, on the application of the sub-fund ' s liquidator, order that the person is personally liable for so much of the sub-fund ' s debts and liabilities as does not exceed an amount specified in the order.

Subdivision F - Proof and ranking of claims  

SECTION 1237W   LIQUIDATOR MUST BE SATISFIED DEBT OR CLAIM IS A LIABILITY OF THE SUB-FUND  

1237W(1)    
The liquidator of a sub-fund must determine that the whole or a part of a debt of the CCIV is not admissible to proof against the sub-fund if the liquidator is satisfied that the debt or the part of the debt (as the case requires) is not a liability of the sub-fund.

1237W(2)    
Such a determination does not have the effect of extinguishing the debt or the part of the debt.

SECTION 1237X   DETERMINATION OF DEBTS AND CLAIMS THAT RELATE TO THE BUSINESS OF 2 OR MORE SUB-FUNDS AND ARE OF UNCERTAIN VALUE  

1237X(1)    
This section applies if, in the winding up of a sub-fund, the liquidator admits a debt or claim that:

(a)    is a liability of the CCIV that does not relate solely to the business of the sub-fund; and

(b)    as at the relevant date, did not bear a certain value.

Note: If the liability relates solely to the business of the sub-fund but is of uncertain value, the liquidator must estimate the value of the debt or claim (paragraph 554A(2)(a) ) or refer the question of the value of the debt or claim to the Court (paragraph 554A(2)(b) ).

1237X(2)    
Section 554A applies in relation to the debt or claim as if the value of the debt or claim that is to be estimated as at the relevant date were the value of the whole of the debt or claim (not just the proportion that is applicable to the sub-fund under subsection 1233L(2) ).

1237X(3)    
However, despite subsection 554A(8) , for the purposes of Division 6 of Part 5.6 , the amount of the debt or claim that is admissible to proof is the product of:

(a)    the value as estimated or worked out under section 554A (as modified by this section); and

(b)    the proportion of the liability applicable to the sub-fund under subsection 1233L(2) .

SECTION 1237Y  

1237Y   APPLICATION OF SUB-FUND PROPERTY  

If a sub-fund of a CCIV is being wound up, the assets of the sub-fund may be applied for the purposes of paying debts and claims that, under section 556 as it applies in relation to the winding up of the sub-fund, must be paid in priority to all other unsecured debts and claims.

Subdivision G - Powers of Courts  

SECTION 1237Z   WARRANT IN RELATION TO BOOKS  

1237Z(1)    
This section applies in relation to a warrant issued by a Court under subsection 530C(2) on application by the liquidator or provisional liquidator of a sub-fund of a CCIV.

1237Z(2)    
The books of a CCIV that may be searched for under the warrant are any books of the CCIV.

1237Z(3)    
The books of the CCIV that may be seized under the warrant are books of the CCIV that relate to the sub-fund.

Specified person to be in possession of warrant

1237Z(4)    
When executing the warrant, the specified person must be in possession of the warrant or a copy of the warrant.

Notification of entry

1237Z(5)    
Subsections (6) and (7) apply if:

(a)    the warrant is being executed in relation to premises; and

(b)    the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.

1237Z(6)    
Before entering the premises under the warrant, the specified person must:

(a)    announce that the person is authorised to enter the premises; and

(b)    show the occupier or other person evidence of the person ' s identity that:

(i) includes a photograph of the person; and

(ii) has not expired.

1237Z(7)    
The specified person must, as soon as practicable:

(a)    make a copy of the warrant available to the occupier or other person; and

(b)    inform the occupier or other person in writing of the rights and responsibilities of the occupier or other person under this section and section 530C .

Books to be used only for purpose of liquidation

1237Z(8)    
A book of the CCIV seized under the warrant may be used only for the purpose for which it was seized.

Return of seized things

1237Z(9)    
Despite subsection 530C(4) , and subject to any contrary order of the Court, a person who has custody of property or a book because of the execution of the warrant must take reasonable steps to return the property or book to the CCIV when the property or book is no longer required to be retained for the purpose for which it was seized.

Receipts

1237Z(10)    
If property or a book is seized under the warrant, the specified person must provide a receipt for the property or book.

1237Z(11)    
If 2 or more books or items of property are seized, they may be covered by the one receipt.

Subdivision H - Recovering property  

SECTION 1237ZA  

1237ZA   PRESUMPTIONS TO BE MADE IN RECOVERY PROCEEDINGS  

A reference in section 588E to financial records a company is required by subsection 286(1) to keep is taken, in relation to a winding up of a sub-fund of a CCIV, to be a reference to both of the following:

(a)    financial records that the CCIV is required to keep and retain for the sub-fund under subsection 286(1) , as that subsection applies in relation to the sub-fund under section 1232A ;

(b)    financial records that the CCIV is required to keep and retain for itself under subsection 286(1) , as that subsection applies to the CCIV under section 1232 .

SECTION 1237ZB   DIRECTORS OF THE CORPORATE DIRECTOR  

1237ZB(1)    
Sections 588FDA and 588FGA apply in relation to a sub-fund of a CCIV as if each of the following were a director of a CCIV:

(a)    a director of the CCIV;

(b)    a director of the corporate director of the CCIV.

1237ZB(2)    
Paragraph (1)(a) is included for the avoidance of doubt.

SECTION 1237ZC  

1237ZC   VESTING OF PPSA SECURITY INTERESTS IF COLLATERAL NOT REGISTERED WITHIN TIME  

Section 588FL applies in relation to a PPSA security interest granted by a CCIV if:

(a)    an order is made, or a resolution is passed, for the winding up of a sub-fund of the CCIV; and

(b)    the PPSA security interest is in collateral that is an asset of the sub-fund of the CCIV.

Division 6 - Recovering property of sub funds  

SECTION 1238  

1238   DUTIES OWED BY DIRECTORS OF CORPORATE DIRECTOR OF A CCIV  

The object of this Division is to ensure that the officers of the corporate director of a CCIV, instead of the corporate director itself, owe the duties in Divisions 3 , 4 , 5 and 6 of Part 5.7B .

SECTION 1238A   APPLYING PROPERTY RECOVERY PROVISIONS TO CCIVs  

1238A(1)    
The property recovery provisions referred to in subsection (2) apply to a CCIV subject to:

(a)    such modifications as are set out in this Division; and

(b)    such other modifications as are made necessary by the facts that:

(i) for a CCIV, solvency and insolvency are determined at the level of a sub-fund, instead of at the level of the CCIV; and

(ii) the officers to whom the provisions are directed are the officers of the corporate director, instead of the officers of the CCIV.

Property recovery provisions

1238A(2)    
The provisions (the property recovery provisions ) are as follows:

(a)    Divisions 3 , 4 , 5 and 6 of Part 5.7B (other than a provision excluded by subsection (3) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (3) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

1238A(3)    
For the purposes of subsection (2) , the regulations may specify provisions that are excluded from the property recovery provisions.

Translation rules

1238A(4)    
In the application of the property recovery provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the company (the relevant company ) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (5) and (6) )
2	refers to the directors, or a director, or the board of the relevant company	the directors, or a director, or the board of the corporate director of the CCIV
3	refers to an officer of the relevantcompany	an officer of the corporate director
4	refers to shares in the relevant company	shares referable to the sub-fund

1238A(5)    
Despite item 1 of the table in subsection (4) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

1238A(6)    
If a reference in a provision to the relevant company is, as a result of subsection (5) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

SECTION 1238B  

1238B   REFERENCES TO INCURRING DEBTS  

For the purposes of the application of the property recovery provisions, as those provisions apply subject to item 1 of the table in subsection 1238A(4) , a sub-fund is taken to incur a debt if:

(a)    the CCIV incurs the debt; and

(b)    the debt is, to any extent, a liability of the sub-fund.

The sub-fund incurs the debt at the time the CCIV incurs the debt.

SECTION 1238C   WHEN DEBTS ARISE IN RELATION TO REDEEMABLE SHARES  

1238C(1)    
For the purposes of section 588G , if a CCIV takes action set out in column 1 of an item of the following table, it incurs a debt at the time set out in column 2 of the item.

When debts are incurred
Item	Column 1 Action of company	Column 2 When debt is incurred
1	redeeming redeemable shares that are redeemable only at its option	when the company exercises the option
2	issuing redeemable shares that are issued on terms that they are liable to be redeemed otherwise than only at its option	when the shares are issued
3	converting under section 1230C a share that is not a redeemable share into a share that is liable to be redeemed otherwise than only at its option	when the shares are converted

1238C(2)    
This section has effect in relation to a CCIV in addition to the table set out in subsection 588G(1A) .

Division 7 - External administration offences  

SECTION 1238D   APPLYING EXTERNAL ADMINISTRATION OFFENCES TO CCIVs  

1238D(1)    
The external administration offences provisions referred to in subsection (3) apply to a CCIV.

1238D(2)    
In addition to the application referred to in subsection (1) , the external administration offences provisions apply to a CCIV subject to:

(a)    such modifications as are set out in this Division; and

(b)    such other modifications as are necessary.

External administration offences provisions

1238D(3)    
The provisions (the external administration offences provisions ) are as follows:

(a)    Part 5.8 (other than a provision excluded by subsection (4) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (4) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

1238D(4)    
For the purposes of subsection (3) , the regulations may specify provisions that are excluded from the external administration offences provisions.

Translation rules

1238D(5)    
In the application of the external administration offences provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the company (the relevant company ) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (6) and (7) )
2	refers to the directors, or a director, or the board of the relevant company	the corporate director of the CCIV
3	refers to an officer of the relevant company	each of the following:
		(a)	a director of the CCIV;
		(b)	a person covered by paragraph (b) , (c) or (d) of the definition of officer of a CCIV in section 1224B in relation to the sub-fund
4	refers to shares in the relevant company	shares referable to the sub-fund

1238D(6)    
Despite item 1 of the table in subsection (5) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

1238D(7)    
If a reference in a provision to the relevant company is, as a result of subsection (6) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

SECTION 1238E   INTERPRETATION OF CEASED TO CARRY ON BUSINESS  

1238E(1)    
For the purposes of Part 5.8 , a sub-fund is taken to have ceased to carry on business only if:

(a)    2 months have passed since a notice under subsection 1239(5) (about voluntary deregistration of a sub-fund) relating to the sub-fund was published and ASIC has not been informed that the part of the business of the CCIV that is registered as the sub-fund is being carried on; or

(b)    ASIC has published a notice under subsection 1239B(1) (about ASIC initiated deregistration of a sub-fund) relating to the sub-fund.

1238E(2)    
Subsection 589(3) does not apply to determine when a sub-fund of a CCIV is takento have ceased to carry on business.

SECTION 1238F   FRAUDS BY OFFICERS  

1238F(1)    
Section 596 applies in relation to a CCIV as if the following were officers of the CCIV:

(a)    a natural person who is an officer of the CCIV;

(b)    a natural person who is a director of the corporate director of the CCIV.

1238F(2)    
Paragraph (1)(a) is included for the avoidance of doubt.

Division 8 - Miscellaneous  

SECTION 1238G   APPLYING EXTERNAL ADMINISTRATION MISCELLANEOUS PROVISIONS TO SUB-FUNDS  

1238G(1)    
The external administration miscellaneous provisions referred to in subsection (2) apply to a CCIV subject to:

(a)    such modifications as are set out in this Division; and

(b)    such other modifications as are necessary.

External administration miscellaneous provisions

1238G(2)    
The provisions (the external administration miscellaneous provisions ) are as follows:

(a)    Part 5.9 (other than a provision excluded by subsection (3) );

(b)    the other provisions of the Corporations legislation (other than a provision excluded by subsection (3) ) to the extent to which they relate to the operation of the provisions referred to in paragraph (a) .

1238G(3)    
For the purposes of subsection (2) , the regulations may specify provisions that are excluded from the external administration miscellaneous provisions.

Translation rules

1238G(4)    
In the application of the external administration miscellaneous provisions, those provisions apply as if the substitutions set out in the following table were made.

Substitutions to be made
Item	Column 1 If the provision …	Column 2 substitute a reference to …
1	refers to the corporation (the relevant corporation ) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the corporation is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table	the sub-fund (but see subsections (5) and (6) )
2	refers to an officer of the relevant corporation	each of the following:
		(a)	a director of the CCIV;
		(b)	a person covered by paragraph (b) , (c) or (d) of the definition of officer of a CCIV in section 1224B in relation to the sub-fund
3	refers to shares in the relevant corporation	shares referable to the sub-fund

1238G(5)    
Despite item 1 of the table in subsection (4) , a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).

1238G(6)    
If a reference in a provision to the relevant corporation is, as a result of subsection (5) , taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.

Division 9 - Deregistration and transfer of registration  

Subdivision A - Deregistration  

SECTION 1239   DEREGISTRATION OF A SUB-FUND - VOLUNTARY  

Who may apply for deregistration

1239(1)    
An application to deregister a sub-fund of a CCIV may be lodged with ASIC by:

(a)    the CCIV; or

(b)    the corporate director of the CCIV; or

(c)    a liquidator of the sub-fund.

If the CCIV lodges the application, it must nominate a person to be given notice of the deregistration.

Circumstances in which application can be made

1239(2)    
A person may apply only if:

(a)    the sub-fund has no assets or liabilities; and

(b)    the CCIV is not a party to any legal proceedings that relate to the sub-fund.

1239(3)    
The application must be in the prescribed form.

ASIC may ask for information about officers

1239(4)    
The applicant must give ASIC any information that ASIC requests about the following officers:

(a)    the current and former officers of the CCIV;

(b)    the current and former officers of the corporate director of the CCIV.

Deregistration procedure

1239(5)    
If:

(a)    ASIC decides to deregister the sub-fund under this section; and

(b)    ASIC is not aware of any failure to comply with subsections (1) to (4) ;

ASIC must:

(c)    give notice of the proposed deregistration on ASIC database; and

(d)    publish notice of the proposed deregistration in the prescribed manner.

1239(6)    
When 2 months have passed since the publication of the notice under paragraph (5)(d) , ASIC may deregister the sub-fund.

1239(7)    
ASIC must give notice of the deregistration to:

(a)    the applicant; or

(b)    the person nominated in the application to be given the notice.

Notices taken to have been given under section 601AA

1239(8)    
For the purposes of the provisions of this Act (other than a provision of this Chapter):

(a)    a notice given under paragraph (5)(c) is taken to have been given under paragraph 601AA(4)(c) ; and

(b)    a notice published under paragraph (5)(d) is taken to have been published under subsection 601AA(4)(d) .

ASIC must not deregister a sub-fund that is an Australian passport fund if the fund has certain members

1239(9)    
However, ASIC must not decide, under this section, to deregister a sub-fund that is an Australian passport fund if:

(a)    there are members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; or

(b)    there are members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

1239(10)    
For the purposes of subsection (9) , ignore any member of the fund that:

(a)    is, or has at any time been, the operator of the fund; or

(b)    is a related party of an entity that is, or has at any time been, the operator of the fund.

Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

SECTION 1239A   DEREGISTRATION OF A SUB-FUND - ASIC INITIATED  

Circumstances in which ASIC may deregister

1239A(1)    
ASIC may decide to deregister a sub-fund of a CCIV if:

(a)    the CCIV has not lodged any documents that relate to the sub-fund under this Act in the last 18 months; and

(b)    ASIC has no reason to believe that the part of the business of the CCIV that is registered as the sub-fund is being carried on.

1239A(2)    
ASIC may also decide to deregister a sub-fund of a CCIV if:

(a)    the CCIV ' s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; and

(b)    the review fee is to any extent a liability of the sub-fund.

1239A(3)    
ASIC may also decide to deregister a sub-fund of a CCIV if the sub-fund is being wound up and ASIC has reason to believe that:

(a)    the liquidator of the sub-fund is no longer acting; or

(b)    the sub-fund ' s affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or

(c)    the sub-fund ' s affairs have been fully wound up under Part 5.4 (as modified by this Part) and the assets of the sub-fund are not enough to cover the costs of obtaining a Court order for the sub-fund ' s deregistration.

1239A(4)    
However, ASIC must not decide, under this section, to deregister a sub-fund that is an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:

(a)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(b)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

1239A(5)    
For the purposes of subsection (4) , ignore any member of the fund that:

(a)    is, or has at any time been, the operator of the fund; or

(b)    is a related party of an entity that is, or has at any time been, the operator of the fund.

Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

Show cause notice

1239A(6)    
Before deciding to deregister a sub-fund, ASIC must give the CCIV a written notice that requires the CCIV to show cause, at a hearing before a specified person, why the sub-fund should not be deregistered.

1239A(7)    
The notice must specify:

(a)    the grounds on which it is proposed to deregister the sub-fund; and

(b)    a reasonable time and place at which the hearing is to be held.

However, if the CCIV consents, the person conducting the hearing may fix a different time or place.

1239A(8)    
The person conducting the hearing must:

(a)    give the CCIV an opportunity to be heard at the hearing; and

(b)    give ASIC:

(i) a report about the hearing; and

(ii) a recommendation about the grounds in the notice on which it is proposed to deregister the sub-fund.

1239A(9)    
After considering the report and recommendation, ASIC may decide to:

(a)    take no further action in relation to the matter and give written advice of that decision to the CCIV; or

(b)    deregister the sub-fund.

1239A(10)    
Neither of the following is a legislative instrument:

(a)    a notice under subsection (6) ;

(b)    a report under subsection (8) (if it is in writing).

SECTION 1239B   PROCESS FOR ASIC INITIATED DEREGISTRATION OF A SUB-FUND  

1239B(1)    
If ASIC decides under section 1239A to deregister a sub-fund of a CCIV, it must:

(a)    give notice setting out the date on which ASIC proposes to deregister the sub-fund:

(i) to the CCIV; and

(ii) to the liquidator of the sub-fund (if any); and

(iii) to the corporate director; and

(iv) on the ASIC database; and

(b)    publish notice of the date on which ASIC proposes to deregister the sub-fund in the prescribed manner.

1239B(2)    
A notice under paragraph (1)(a) must be given at least 5 business days before the sub-fund is deregistered.

1239B(3)    
ASIC may deregister the sub-fund if:

(a)    5 business days have passed since the publication of the notice under paragraph (1)(b) ; and

(b)    at the time ASIC deregisters the sub-fund, ASIC has reason to believe that there is no property of the CCIV to which section 1233K (about property that has to be converted) applies.

1239B(4)    
ASIC does not have to give a person notice under paragraph (1)(a) if ASIC does not have the necessary information about the person ' s identity or address.

1239B(5)    
If ASIC deregisters a sub-fund of a CCIV under this section, ASIC must give notice that the fund has been deregistered, and the date on which it has been deregistered, to everyone who was notified of the proposed deregistration under subparagraph (1)(a)(ii) or (iii) .

1239B(6)    
The notice must be given within 5 business days after the sub-fund is deregistered.

Notices taken to have been given under section 601AB

1239B(7)    
For the purposes of the provisions of this Act (other than a provision of this Chapter):

(a)    a notice given under paragraph (1)(a) is taken to have been given under paragraph 601AB(3)(a) ; and

(b)    a notice published under paragraph (1)(b) is taken to have been published under subsection 601AB(3)(b) .

SECTION 1239C  

1239C   DEREGISTRATION OF A SUB-FUND - FOLLOWING AMALGAMATION OR WINDING UP  

ASIC must deregister a sub-fund of a CCIV if the Court orders the deregistration of the sub-fund under:

(a)    paragraph 413(1)(d) (reconstruction and amalgamation of Part 5.1 bodies); or

(b)    paragraph 481(5)(b) (release of liquidator); or

(c)    subsection 509(2) (deregistration after end of administration return is lodged).

Note: These provisions apply to a sub-fund of a CCIV with modifications: see Divisions 1 to 8 of this Part.

SECTION 1239D   EFFECT OF DEREGISTRATION OF A SUB-FUND  

Effect on assets of the CCIV

1239D(1)    
Subsections 601AD(1A) to (4) and section 601AE apply in relation to the deregistration of a sub-fund of a CCIV.

Note: Subsection 601AD(1) does not apply in relation to the deregistration of a sub-fund of a CCIV. The CCIV will continue to exist until the CCIV itself is deregistered.

1239D(2)    
Those provisions apply as if a reference to property were instead a reference to property of the sub-fund.

Note: For references to property of a sub-fund, see subsection 51F(3) .

Books

1239D(3)    
If a sub-fund of a CCIV is deregistered, the CCIV must keep the CCIV ' s books that relate to the sub-fund (other than books that a liquidator has to keep under subsection 70-35(1) of Schedule 2 ) for 3 years after the deregistration.

Note: If the CCIV itself is deregistered, the corporate director of the CCIV immediately before it is deregistered is required to retain all books of the CCIV including these books: see section 1239L .

1239D(4)    
An offence based on subsection (3) is an offence of strict liability.

Consequences of deregistration on status as an Australian passport fund

1239D(5)    
If:

(a)    a sub-fund of a CCIV is deregistered; and

(b)    the sub-fund was an Australian passport fund;

ASIC must annotate the Register of Passport Funds to indicate that the sub-fund is no longer an Australian passport fund, or cause that annotation to be made on the Register.

SECTION 1239E  

1239E   THE COMMONWEALTH ' S AND ASIC ' S POWER TO FULFIL OUTSTANDING OBLIGATIONS IN RELATION TO DEREGISTERED SUB-FUND  

The Commonwealth or ASIC may do an act on behalf of the CCIV of a deregistered sub-fund or the liquidator of the sub-fund if the Commonwealth or ASIC is satisfied that the CCIV or liquidator would be bound to do the act if the sub-fund had not been deregistered.

Note: This power is a general one and is not limited to acts in relation to property vested in the Commonwealth under subsection 601AD(1A) , or ASIC under subsection 601AD(2) . The Commonwealth or ASIC has all the powers that automatically flow from the vesting of property under that subsection (see subsections 601AD(3A) and (4) ) and may exercise those powers whether or not the CCIV was bound to do so.

SECTION 1239F  

1239F   CLAIMS AGAINST INSURERS IN RELATION TO DEREGISTERED SUB-FUND  

A person may recover from the insurer of a CCIV an amount that was payable to the CCIV under the insurance contract if:

(a)    a sub-fund of the CCIV is deregistered; and

(b)    the CCIV has a liability to the person that was a liability of the sub-fund; and

(c)    the insurance contract covered that liability immediately before the sub-fund was deregistered.

SECTION 1239G   REINSTATEMENT OF A SUB-FUND  

1239G(1)    
The registration of a sub-fund of a CCIV may be reinstated under section 601AH as if the sub-fund were a company.

Note: Notice of the reinstatement must be given: see section 1239J .

1239G(2)    
If the registration of a sub-fund of a CCIV is reinstated under section 601AH , the sub-fund is taken to have been registered throughout the period it was deregistered.

1239G(3)    
The Court ' s power to make an order under subsection 601AH(3) includes the power to make an order in relation to the following:

(a)    the assets or liabilities of a sub-fund of a CCIV whose registration is reinstated;

(b)    the assets or liabilities of any other sub-fund of the CCIV which is affected by the reinstatement.

1239G(4)    
If the registration of a sub-fund of a CCIV is reinstated under section 601AH , any property of the CCIV that was property of the sub-fund that is still vested in the Commonwealth or ASIC revests in the CCIV. If the CCIV held particular property subject to a security or other interest or claim, the CCIV takes the property subject to that interest or claim.

Note: The CCIV must allocate the property to the sub-fund in accordance with Subdivision B of Division 3 of Part 8B.5 .

1239G(5)    
Subsections 601AH(1A) , (4) , (4A) and (5) do not apply in relation to the reinstatement of the registration of a sub-fund of a CCIV.

Registration as an Australian passport fund not reinstated

1239G(6)    
The reinstatement of the registration of a sub-fund of a CCIV does not result in the sub-fund ' s registration as a passport fund under Part 8A.3 being reinstated, even if the sub-fund was an Australian passport fund immediately before its deregistration.

SECTION 1239H   CCIV REINSTATED FOLLOWING REINSTATEMENT OF A SUB-FUND  

1239H(1)    
If a CCIV is deregistered and:

(a)    ASIC reinstates the registration of a sub-fund of the CCIV under subsection 601AH(1) ; or

(b)    the Court makes an order that ASIC reinstate the registration of the sub-fund under subsection 601AH(2) ;

ASIC must also reinstate the registration of the CCIV.

Note: Notice of the reinstatement of the registration of the CCIV must be given: see section 1239J .

Effect of reinstatement

1239H(2)    
If the registration of a CCIV is reinstated the CCIV is taken to have continued in existence as if it had not been deregistered.

Note: Any property of the CCIV that comprised assets of the sub-fund that is still vested in the Commonwealth or ASIC revests in the CCIV: see subsection 1239G(4) .

1239H(3)    
To avoid doubt, the reinstatement of the registration of the CCIV also has the effect of reinstating, at the time the registration is reinstated, ASIC ' s record, kept as part of the registration, of the company that is the corporate director or temporary corporate director of the CCIV.

Note: The company named in the record as the corporate director or temporary corporate director of the CCIV is the corporate director of the CCIV (see subsection 1224(3) ). See section 1224S for what happens if the corporate director does not meet the requirements of section 1224F .

SECTION 1239J  

1239J   NOTICES RELATING TO REINSTATEMENT OF A SUB-FUND  

If the registration of a sub-fund of a CCIV is reinstated under section 601AH , ASIC must publish notice in the Gazette and give notice to the corporate director of the CCIV of the following:

(a)    the reinstatement of the registration of the sub-fund;

(b)    if as a result of reinstating the sub-fund the registration of the CCIV is also reinstated under section 1239H - the reinstatement of the registration of the CCIV.

SECTION 1239K   DEREGISTRATION OF A CCIV  

CCIV must be deregistered if it has no registered sub-funds

1239K(1)    
If, as the result of ASIC deregistering a sub-fund of a CCIV, the CCIV has no registered sub-funds, ASIC must deregister the CCIV.

Note: Subject to this Subdivision, sections 601AD to 601AG apply in relation to the deregistration of the CCIV.

1239K(2)    
ASIC must give the corporate director of the CCIV written notice that the CCIV has been deregistered and the date on which it has been deregistered.

1239K(3)    
The notice must be given within 5 business days after the date the CCIV has been deregistered.

CCIV may not be deregistered under section 601AA, 601AB or 601AC

1239K(4)    
ASIC may not deregister a CCIV under section 601AA , 601AB or 601AC .

SECTION 1239L   BOOKS OF THE CCIV TO BE KEPT BY FORMER CORPORATE DIRECTOR  

1239L(1)    
If a CCIV is deregistered, the corporate director of the CCIV immediately before the deregistration must keep the CCIV ' s books (other than books that a liquidator has to keep under subsection 70-35(1) of Schedule 2 ) for 3 years after the deregistration.

1239L(2)    
An offence based on subsection (1) is an offence of strict liability.

1239L(3)    
Books that the corporate director of the CCIV is required to keep under subsection (1) are taken to be books of the corporate director for the purposes of subsections 601AD(5) to (7) as those sections apply in relation to deregistration of the corporate director.

Note: If the corporate director is deregistered, the directors of the corporate director immediately before deregistration must keep the corporate director ' s books for 3 years after the deregistration: see subsection 601AD(5) .

1239L(4)    
Subsections 601AD(5) to (7) do not apply in relation to the deregistration of a CCIV.

SECTION 1239M  

1239M   A CCIV MAY NOT BE REINSTATED UNDER SECTION 601AH  

The registration of a CCIV may not be reinstated under section 601AH .

Note: If a CCIV has been deregistered and the registration of a sub-fund is reinstated under section 601AH , ASIC must reinstate the registration of the CCIV: see section 1239H .

Subdivision B - Transfer of registration  

SECTION 1239N  

1239N   REGISTRATION OF CCIV CANNOT BE TRANSFERRED  

Part 5A.2 does not apply to a CCIV.